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Judgment
Acting Chief Justice-This appeal is directed against the order of the learned single Judge dismissing Writ Petition No. 2508 of 1977. The facts leading to the appeal are mostly undisputed and may briefly be stated as follows:
The Reserve Bank of India (the ''Bank''), the appellant herein, invited applications for the posts of Clerks in Grade II. Gururaja Rao, respondent herein, was one of the applicants. He was successful in the written test and also in the interview. An offer of appointment dated February 4, 1977 was communicated to him containing, inter alia, the following conditions:
"(i) to (iv) xx xx xx
(v) His appointment is subject to his being found medically fit for service in the Bank by the Bank''s Medical Officer. The Bank''s decision in regard to his fitness or unfitness will be final and no correspondence in this regard will be entertained by the Bank in any circumstances.
(vi) His continuance in the Bank''s service will depend, among other things, on his being found medically fit for service in the Bank by the Bank''s Medical Officer on re-examination after a period of six months from the date of his appointment. He may thereafter be continued in service subject to further re-examination, but in no event will be continued in service beyond a period of one year from the said date unless, before the expiry of that period he is found by the Bank''s Medical Officer to be medically fit, failing which his services are liable to be terminated forthwith without any notice or compensation in lieu thereof. The Bank will not reimburse any expenditure incurred by him in connection with his treatment, medical re-examination etc."
xx xx xx xx xx
Gururaja Rao accepted the said offer of appointment by his communication dated February 15, 1977. He was thereafter called for medical examination. The Bank''s Medical Officer examined him on February 22, 1977. He was found normal in all respects save his weight which was then 198 lbs. It was considered as over-weight by about 33 lbs. The Medical Officer issued a certificate in the following terms:
"Certificate of Medical Fitness for employment in the Reserve Bank of India.
I do hereby certify that I have examined Shri M.R. Gururaja Rao, a candidate for employment in the Reserve Bank of India and cannot discover that he has any disease, constitutional affliction or bodily infirmity, except obesity and over-weight- slight with hyper tension. I do consider this a disqualification for employment in the Reserve Bank of India as per rules of the Bank. His age is according to his own statement 23 years, and by appearance about 23 years.
Reserve Bank of India,
Bangalore-550 002
22-2-1977. Sd/-
Medical Officer"
The certificate shows that Gururaja Rao did not suffer from any disease or bodily infirmity, except obesity and over-weight coupled with a slight hyper-tensien. The Medical Officer considered this over-weight as a disqualification for employment as per the rules of the Bank. In view of this certificate, Gururaja Rao was not given employment and the earlier offer made to him was withdrawn by the Bank''s letter dated March 4, 1977.
Challenging the Bank''s refusal to appoint, Gururaja Rao moved this Court with Writ Petition No. 2508/77 seeking a writ of mandamus against the Bank to give him an appointment. The learned single Judge allowed the writ petition directing the Bank to reconsider the case of Gururaja Rao after subjecting him to a further medical examination without reference to the criteria laid down in the Bank''s circular dated January 7, 1970.
It is now necessary to state something about the Bank''s circulars regarding medical examination of candidates for recruitment.
The Bank has, from time to time, issued certain instructions by way of guidance to Medical Officers with regard to pre-recruitment medical examination of candidates. One such memorandum was dated March 23, 1967. It was followed by a confidential letter dated November 6, 1969 from the Deputy Manager of the Bank at Bombay to all the centres of the Bank. Those instructions seem to have been revised on November 6, 1969 and again on January 7, 1970. The circular dated January 7, 1970 was produced before the learned single Judge perhaps in justification of the certificate of medical fitness issued by the Bank''s Medical Officer. It referred to the standard height and weight of candidates seeking employment in the Bank. It was argued that the refusal to appoint Gururaja Rao for the post for which he was selected was arbitrary, since it was solely based on the conditions of medical fitness which were never disclosed to candidates. It was also urged before the learned single Judge that if the criteria of medical fitness had been made known to the candidate, he would have acquired those qualifications and made himself fit accordingly, or he would have challenged the validity of those qualifications prescribed for the post. On the first part of the contention, learned Judge observed that the instructions regarding the medical fitness laid down by the Bank were in the nature of additional criteria or conditions of eligibility of all candidates and, therefore, those conditions of eligibility must have been made known to all candidates while inviting applications for the posts. The candidates have the right to know all the conditions of eligibility before hand so as to enable them to conform to the qualifications if possible, or to question its validity if aggrieved. The learned Judge thereupon held that without disclosing the criteria or conditions of eligibility to the candidates competing for appointment, the application of such criteria or conditions of eligibility confidentially circulated would be arbitrary, discriminatory and opposed to the right to equality guaranteed under Articles 14 and 16(1) of the Constitution. So stating, the learned Judge allowed the writ petition with a direction to the Bank to re-consider the case of Gururaja Rao for appointment after subjecting him for further medical examination and appoint him if the Medical Officer certifies that he is medically fit. The learned Judge also directed the Medical Officer to consider the fitness of Gururaja Rao to take up the appointment in the Bank without reference to the criteria laid down in the said confidential circular dated January 7, 1970.
Now it becomes clear that Gururaja Rao had overweight disproportionate to his height, as per the standard approved by the Bank. He was weighing 33 lbs more than the weight relatable to his height by that standard. He had also slight hypertension, but that was not a disqualification as per the guidelines laid down by the Bank.
In this appeal, the contention of Mr. Sundaraswamy, learned counsel for the Bank, to put it in laconic details, are:
That the view taken by the learned single Judge cannot be sustained inasmuch as the criteria laid down by the Bank as regards the height, weight measurements of candidates seeking recruitment are not terms of employment. They were instructions to Medical Officers intended to ensure that the selected candidates would render uninterrupted service to the public. They were also intended to ensure uniformity in issuing medical fitness certificates to candidates at all centres of recruitment. Such instructions are, therefore, not required to be intimated to candidates.
Mr. Raikar, learned counsel for the respondent, while justifying the view taken by the learned single Judge, has urged that the certificate of fitness issued by the Medical Officer was solely based on the conditions prescribed by the Bank and not on the general condition of health of the candidate. The conditions prescribed by the Bank left very little discretion to Medical Officers to form their own opinions as to the medical fitness of the candidate. Such conditions which take away the discretion of Medical Officers must be regarded as terms of employment. The candidate must be made aware of those conditions of selection to enable them to conform to the requirements or to challenge the same if unreasonable or unrelated to the nature of duties of the post.
In our opinion, there is considerable misunderstanding or confusion as to the scope and purpose of the confidential guidelines issued by the Bank to Medical Officers. The confusion, perhaps is due to the fact that those guidelines remained in obscurity and not fully disclosed or revealed to the parties or to learned single Judge. It was only before us that the counsel for the Bank has made available some of those confidential communications. We will presently consider them in detail, but before doing that it will be useful to take note of the general practice followed in all systems of recruitment. Whether it is in public service or private employment, medical fitness of selected candidates is generally insisted upon. The candidates are subjected to medical examination to find out whether they are physically fit and mentally alert to discharge the duties of the posts to which they are selected. In the disciplined force like Military Service or Police Force, physical fitness is strictly insisted upon, regard being had to the nature of the duties to be performed by the selected candidates. In other services, the discretion to issue medical fitness certificates is usually left to the Medical Board or Medical Officer appointed for the purpose.
So far as the Reserve Bank is concerned, it has selection centres situated in different States. In each centre, there are Medical Officers authorised to examine candidates selected for recruitment in the Bank. It appears the Bank''s Medical Officers at various centres have made some suggestions for issuing medical fitness certificates. In the light of those suggestions and the practice followed for recruitment in Government service, the Central Office of the Bank at Bombay issued certain instructions for the guidance of their Medical Officers. The instructions were communicated confidentially to the Manager of the Bank in all centres.
The first question herein is whether the standard prescribed as to height-weight measurements of candidates seeking employment in the Bank are in the nature of conditions of employment or qualifications prescribed for the posts? The second question is whether that standard or guidelines as to the health of candidates ought to have been intimated to them at the time of inviting applications for the posts or at any time afterwards before they are subjected to Medical Examination. The answer to these questions, in our opinion, could be easily found if the confidential communications of the Bank are closely perused.
The Circular dated March 23, 1967 reads:
"RESERVE BANK OF INDIA
CENTRAL OFFICE
DEPARTMENT OF ADMINISTRATION & PERSONNEL,
BOMBAY No. 1
Rec. No. 3254/20A-66/67
23rd March 1937
2nd Chaitra 1889 (Saka)
Confidential
The Manager,
Reserve Bank of India,
Bangalore and other centres.
Dear Sir,
Staff-pre-recruitment-Medical Examination
Please refer to our letter Rec. No. 991/20A-65 dated 30th September 1964 on the above subject.
In the light of the suggestions received from the Bank''s Medical Officers at various centres and the practice followed by Government in this regard, we have drawn up a memorandum of instructions for the guidance of our offices. The memorandum outlines the standards of medical fitness that should generally be followed by our Medical Officers in respect of pre-recruitment medical tests. The instructions contained therein are intended to ensure a measure of uniformity at our various offices in so far as standards of fitness are concerned. The memorandum is fairly comprehensive but in cases of doubt the Bank''s Medical Officers may exercise their own judgment in the light of the general criteria laid down in the memorandum............"
The above instructions have been reviewed and fresh instructions have been issued to all the regional Managers of the Bank by a letter dated January 7, 1970 which is in the following terms:
RESERVE BANK OF INDIA
CENTRAL OFFICE
DEPARTMENT OF ADMINISTRATION AND PERSONNEL
BOMBAY-1.
Rec. No. 1947/20A-69/70
January 7, 1970
Pausa 17, 1891 (Saka)
Confidential
The Manager,
Reserve Bank of India,
All Offices:
Dear Sir,
Staff-Pre-recruitment-Medical Examination
Please refer to our circular letter Rec. No. 1184/20A-39/70 dated 6th November 1969 and your reply thereto.
The position has since been reviewed in Central Office in the light of the views expressed by the Bank''s Medical Officers attached to our offices at various centres. It has now been decided that the body-weights prescribed in the height-weight schedule in paragraph 1 of the memorandum forwarded with our circular letter Rec. No. 3254/20A-66/67 dated 23rd March 1967 should be amended as in the Annexure. Besides, a deficiency in body-weights to the extent of 5 lbs in the case of male candidates and 7 lbs. in the case of female candidates from the revised minimum weights may be allowed and the candidates put on medical probation, provided the Bank''s Medical Officer is satisfied that the weight deficiency is not due to any definite disease or organic defect as stated in our letter Rec. No. 2962/20A/67-68 dated 25th April 1968.
In the case of candidates for the posts of Durwans, it should be ensured that they possess good physique and are fit to discharge the duties to be entrusted to them. For this purpose, the Bank''s Medical Officers may, at their discretion, apply higher standards of body weights than those proposed in the Annexure.
The above instructions will come into force with immediate effect. Past cases where the candidates were already advised of the results of the medical examination need not, however, be re-opened.
Yours faithfully,
Sd/- Deputy Manager."
The relevant portion of the table of body-weight and height laid down by circular dated March 23, 1967 is as follows:
L.I.C. Standard of body Standard weight proposed to be laid down
Weight Minimum Maximum
5'' 5" 122 lbs 112 lbs 142 lbs
5'' 6" 125 lbs 115 lbs 145 lbs
5'' 7" 129 lbs 119 lbs 149 lbs
5'' 8" 133 lbs 123 lbs 153 lbs
5'' 9" 137 lbs 127 lbs 157 lbs
5'' 10" 141 lbs 131 lbs 161 lbs
5'' 11" 146 lbs 136 lbs 166 lbs
6'' 0" 151 lbs 141 lbs 171 lbs
This standard has undergone modification with a slight reduction in the minimum weight but increasing the corresponding maximum weight of the body. The modification prescribed by the circular dated January 7, 1970 runs as follows:
Physical measurements-Body-weight and heights
Height Minimum Maximum
5'' 5" 103 lbs 150 lbs
5'' 6 105 lbs 155 lbs
5'' 7" 107 lbs 160 lbs
5'' 8 109 lbs 165 lbs
5'' 9" 111 lbs 170 lbs
5'' 10 113 lbs 175 lbs
5'' 11 115 lbs 180 lbs
6'' 0 117 lbs 185 lbs
If one reads the aforesaid circulars, it will be clear that the physical measurements proposed for candidates was meant as a general guide and not as a rigid standard. They are certainly not conditions or qualifications prescribed for the posts. Indeed, the circular dated March 23, 1967 makes this point beyond doubt. It expressly states that the instructions therein were intended to ensure a measure of uniformity at all the Bank''s centres of recruitment as regards the issuance of medical fitness certificates. The said circular states:
"Pre-recruitment Medical Examination-Standards of fitness
Physical Measurements & Examination
Though no specific standard of physical fitness other than for visual acuity can be prescribed, the Bank''s Medical Officer is expected to ensure that a candidate in his existing state of health will be able to render uninterrupted service to the Bank. It may happen that at the time of examination a candidate as no symptoms of any serious illness except low body-weight in relation to his height and age. Though low weight by itself cannot be regarded as a disease, it is experience that it is a forerunner of many lurking infections or subclinical form of an ailment. It is suggested that we may insist on candidates having a minimum and maximum body-weight for entry in the Bank''s service..........................................................
The proposed "standard weight" is meant as a general guide and not as a rigid standard but any large deviation from it should be avoided."
Para-2 of the said circular deals with obesity with which we are primarily concerned in this case. It reads:
"2. (i) Obesity by itself when not extreme and not accompanied by any indication that it is due to endocrinal disease, should not be regarded as disqualification. When a candidate is on the border-line of minimum or maximum weight, he/she should be investigated thoroughly for the cause of low/over weight............................"
It is thus clear that the Medical Officers should not reject the candidates as medically unfit for employment merely on the basis that they do not conform to the standard height-weight measurements prescribed by the Bank.
The aforesaid instructions have been reiterated in the confidential letter No. 1184/20A-69/70 dated November 6, 1969 issued by the Deputy Manager of the Bank, Central Office, Bombay-1. The relevant portion of that circular reads:
"....It is also felt that in the matter of body-weight, the Bank''s Medical Officers need not rigidly adhere to the weight standards prescribed in para- graph 1 of the memorandum forwarded with our letter Rec. No. 3254/20A-66/ 67 dated the 23rd March 1967-"standard-weight" mentioned therein being treated only as a general guide.''''
From the terms of the aforesaid circulars issued by the Bank, the conclusion is inescapable that the standard of physical fitness laid down therein is not a prescription of qualification for any particular post. They are in the nature of guidelines to Medical Officers to ensure uniformity in issuing medical fitness certificates to candidates in all selection centres. The Medical Officers are required to bear in mind those guidelines in order to ensure that the selected candidates in their existing state of health will be able to render uninterrupted service to the public. In this context, the Bank has particularly invited the attention of the Medical Officers in regard to obesity. It has been stated that the obesity by itself not accompanied by any endocrinal disease should not be regarded as disqualification for employment. The Medical Officer in the instant case seems to have forgotten this instruction.
Denis Craddock, a General Practitioner in South Croydon, in his book "Obesity and its Management" (Third Edition, Page 13) states:
"Both doctors and laymen alike have been puzzled for generations as to why some people eating the same amount of food and taking the same amount of exercise as others can yet remain obese while their fellows stay lean.
The reasons for this paradox are now much clearer than they were a few years ago and the genetic tendency to put on weight easily is paramount. Some individuals are destined to battle all their life against this tendency.
Lack of adequate exercise plays a subsidiary but important part. Social pressures ensure that obesity is common in the richer classes of poor nations and the poorer classes of the rich nations of the western world........"
Obesity is now regarded as a genetic pendency. It is also a product of plenty. But proper exercise and a change of food habits could considerably reduce the density. That seems obvious and the weight of a person, whether due to obesity or otherwise, is not an unalterable feature. Nor it could be considered as an insurmountable obstacle to pursue any occupation or to do any office work. At any rate, it cannot be regarded as a disqualification for clerical or other posts in the Bank''s service.
The next question for consideration is whether Gururaja Rao ought to have been intimated in advance about the height-weight standard laid down by the Bank, and for want of such intimation whether his non-selection was illegal. We do not think that this contention has any substance. Firstly, for the reason that we have already stated that it is not a qualification prescribed for any post in the Bank''s service. It is just a general guide to regulate the discretion of Medical Officers. Secondly, Gururaja Rao was specifically intimated in his order of appointment that his appointment was subject to his being found medically fit for service in the Bank by the Bank''s Medical Officer, that intimation to Gururaja Rao, in our opinion, is itself sufficient that he must possess reasonably good health to perform the duties of the post to which he has been selected. Thirdly, so far as the body-weight of any person is concerned, one need not be specifically told about it or reminded about it. Whether it is over-weight or under-weight, it is not a choice. One must take it and live with it. In fact, he always lives with it being fully conscious of it, may be unmindful of what others say about it.
In the instant case, Gururaja Rao, as revealed from the medical examination, does not suffer from any indication of endocrinal disease. He has no other constitutional affliction or bodily infirmity except over-weight and slight hypertension. It is, therefore, for the Medical Officer to examine Gururaja Rao, of course, in the light of the guidelines given by the Bank, but it is for him and him alone to come to the conclusion whether Gururaja Rao in his existing state of health would be able to perform the duties of the post to which he has been selected. The medical examination, in a case like this, is only to find out whether the candidate suffers from any disease or whether he has symptoms of any serious illness which may prevent him from rendering uninterrupted service to the Bank. The certificate of fitness to be given by the Medical Officer is not a guarantee against unforseen contingencies.
In the result, we allow the appeal in part, modify the order of learned single Judge with a direction to the Bank to have Gururaja Rao examined by the Medical Officer. It is needless to state that the Medical Officer must examine Gururaja Rao and issue medical fitness certificate in the light of the observations made in this order. We also direct the Bank to appoint Gururaja Rao in the post to which he has been provisionally selected, if the Medical Officer certifies that he is medically fit.
In the circumstances of the case, we make no order as to costs.