Ajay Meena v. Airport Authority of India and Anr

Delhi High Court · 17 Aug 2023 · 2023:DHC:6448

Chandra Dhari Singh

W.P.(C) 17282/2022

2023:DHC:6448

administrative petition_dismissed Significant

AI Summary

The Delhi High Court dismissed the petition seeking a review medical examination for a sensitive post, holding that mandamus cannot be issued without a clear legal right or statutory duty and that medical fitness decisions by competent authorities are final barring mala fide or arbitrariness.

Full Text

W.P.(C) 17282/2022
HIGH COURT OF DELHI
Date of order: 17th August, 2023

W.P.(C) 17282/2022, CM APPL. 54931/2022, 34105/2023 &
34112/2023 AJAY MEENA ..... Petitioner
Through: Appearance not given.

VERSUS

AIRPORT AUTHORITY OF INDIA AND ANR ..... Respondents
Through: Mr. Digvijay Rai, Mr. Archit Mishra, Advocates with Mr. Vivek Gupta, AGM (Law) with Ms. Sonal Singh, AM (Law), AAI for R-1.

CORAM:

HON'BLE MR. JUSTICE CHANDRA DHARI SINGH O R D E R
CHANDRA DHARI SINGH, J (Oral)

JUDGMENT

1. The instant petition has been instituted on behalf of the petitioner under Article 226 of the Constitution of India, praying as follows: “i. Issue an appropriate Writ/Order/Direction in the nature of mandamus, directing the respondents to carry out re-view medical examination of the petitioner and consider him for appointment as Junior Executive under the Airport Authority of India in terms of Advertisement No. 02/2022 along with all consequential benefits; ii. Pass such other order/s as may be deemed fit & proper.”

2. Learned counsel for the petitioner submitted that the petitioner applied for the position of Junior Executive (Air Traffic control in pursuance Advertisement No.02/2022 under the Airport Authority of India).

3. It is submitted that the petitioner was successful in the Computer- Based Test (CBT) and was called for the purpose of document verification, voice Test and testing for psychoactive substances vide letter dated 4th October 2022. The petitioner cleared all tests, except namely, Amphe Tamine Screen Urine as per Test Report dated 7th November 2022 wherein it was stated that there is a possibility of false positive results since, the petitioner has never taken drugs for weight loss or suffered from narcolepsy or attention deficit disorder.

4. It is submitted vide representation dated 1st December 2022 by the petitioner to the respondents stating that he had taken medicines for boil on his thigh and did not consume any substance which contained psychotropic substance.

5. It is further submitted that the petitioner suffers from no addiction of any kind and is afflicted with the brain disorder.

6. It is submitted that the respondents have released the final result where in the result of the petitioner was not declared. The cutoff percentile for the candidate from the ST category to be qualified is as 98.001, however the petitioner has scored 98.031 percentile, hence the petitioner was qualified to be appointed at the said position.

7. It is further submitted that the petitioner has been informed by the respondent that he has not been selected due to medical reasons and the petitioner’s request for a review of the medical examination was rejected.

8. In view of foregoing reasons, the petition may be allowed and the reliefs as prayed by the petitioner may be allowed.

9. Per Contra, learned counsel for the respondent vehemently opposed the averments made by the petitioner and submitted that the present petition is nothing but an abuse of the process of law.

10. It is submitted that it was clearly stated in the advertisement for the said job post as well as the call letter dated 04th October 2022 that the candidate will be tested for various psychoactive substances which include amphetamine and amphetamine type substances. It was further stated that non-negative test report for any of the psychoactive substances will lead to disqualification and the candidate would not be considered eligible for selection.

11. It is further submitted that the said post is in a sensitive post requiring the candidates to work in the Air Traffic Control and therefore medical fitness, specifically a negative test for psychoactive substances is a crucial requirement.

12. It is submitted that there is no provision for second medical examination, in the advertisement for the job position or as per the rules of the respondent. The petitioner is not entitled for second medical examination on the ground that drug like amphetamine may not be detected in any subsequent test.

13. It is contended that this Court vide orders dated 23rd December 2022 and 02nd February 2023 directed for a medical test qua psychoactive substances more particularly the detection of amphetamine and Amphetamine Screen Urine by Dr. RML Hospital and AIIMS National Drug Dependence Treatment Center Ghaziabad, UP, however, the reports of the same were of no assistance to either this Court or to the benefit of the petitioner.

14. It is submitted that the petitioner has failed to produce any medical prescription rendered by any medical practitioner who has prescribed any medicine, which is consumed by the petitioner in which amphetamine is present. On the contrary, the petitioner on the date of conducting medical test, himself admitted that the petitioner was not under any medication and hence, the petitioner has tried to come up with the excuse of boil on his thigh as an afterthought.

15. It is further submitted that the petitioner while disclosing his clinical history has clearly stated that during the relevant period, he was not under any medication.

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16. Hence, in view of the foregoing submissions, the respondent seeks that this Court may be pleased to dismiss this revision petition thereby, upholding the impugned order.

17. Heard both the parties at length.

18. This Court has perused the material on record.

19. Keeping in view the arguments advanced by the parties, the only question that falls for consideration is whether a writ/order/direction in the nature of mandamus may be issued by this Court, directing the respondents to carry out a review medical examination of the petitioner and consider him for appointment as Junior Executive under the Airport Authority of India in terms of Advertisement No. 02/2022 along with all consequential benefits.

20. Before delving into the merits of the case, this Court deems fit to enunciate the principle governing grant of writ of mandamus under Article 226 of the Constitution of India.

21. Mandamus is one of the prerogative writs issued by the High Court or the Supreme Court in the manner of command to any authority that falls under the definition of “State” as per Article 12 of the Constitution of India for the purpose of fulfilling their constitutional/ statutory/ public duty. It is used as a last resort in cases where the Court is satisfied that without its intervention there will be denial to justice to the party invoking such writ.

22. The quintessential elements for issuing a writ of mandamus are firstly, the petitioner has claimed relief by invoking such writ has a legal right, secondly, the authority against whom the writ is seeking to be enforced has a legal duty towards such petitioner and has refused relief to petitioner, thirdly, such relief is claimed with a bonafide intention and fourthly, the petitioner has no alternative remedy.

23. The Court has to be very hypervigilant while issuing a writ of mandamus since the writ of mandamus is an extraordinary remedy to be invoked only upon special occasions and in exceptional circumstances. It is invoked to supplement the deficiency in law, if any, and cannot be invoked as an appellate mechanism against the decision of any Court, Tribunal, or Authority which is exercising statutory power. The writ of mandamus is an invincible weapon in cases, where there is a failure of justice or exercise of power in an illegal way or arbitrary manner.

24. The aforesaid principle has been reiterated by the Hon’ble Supreme Court in the judgment of Oriental Bank of Commerce v. Sunder Lal Jain,

11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: “Note 187.—Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. *** Note 192.—Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. *** Note 196.—Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned—an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. *** Note 206.— … The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.”

12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145: AIR 1977 SC 2149] after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah [AIR 1966 SC 334], Rai Shivendra Bahadur (Dr.) v. Nalanda College [AIR 1962 SC 1210] and Umakant Saran (Dr.) v. State of Bihar [(1973) 1 SCC 485: AIR 1973 SC 964] this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case [(1977) 4 SCC 145: AIR 1977 SC 2149], SCC pp. 152-53)

“15. … There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. … In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for

grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same.” Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant Bank to declare their account as NPA from 31-3-2000 and apply RBI Guidelines to their case.”

25. The principle governing mandamus has been further reiterated by Hon’ble Supreme Court in the judgment of Hero Motocorp Ltd. v. Union of India, (2023) 1 SCC 386 as follows:

“75. It can thus be seen that unless the appellants show any statutory duty cast upon the respondent Union of India to grant them 100% refund, a writ of mandamus as sought could not be issued. The position is reiterated by this Court in K.S. Jagannathan [Comptroller & Auditor General of India v. K.S. Jagannathan, (1986) 2 SCC 679 : 1986 SCC (L&S) 345] as under : (SCC pp. 692-93, para 20) “20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.”

76. It could thus be seen that this Court holds that a writ of mandamus can be issued where the Authority has failed to exercise the discretion vested in it or has exercised such a discretion mala fide or on an irrelevant consideration.

77. This position was again reiterated by this Court recently in Bharat Forge [Union of India v. Bharat Forge Ltd., (2022) 17 SCC 188: 2022 SCC OnLine SC 1018] as follows: (SCC paras 18- 19)

“18. Therefore, it is clear that a writ of mandamus or a direction, in the nature of a writ of mandamus, is not to be withheld, in the exercise of powers of Article 226 on any technicalities. This is subject only to the indispensable requirements being fulfilled. There must be a public duty. While the duty may, indeed, arise form a statute ordinarily, the duty can be imposed by common charter, common law, custom or even contract. The fact that a duty may have to be unravelled and the mist around it cleared before its shape is unfolded may not relieve the Court of its duty to cull out a public duty in a statute or otherwise, if in substance, it exists. Equally, Mandamus would lie if the Authority, which had a discretion, fails to exercise it and prefers to act under dictation of another Authority. 19. A writ of mandamus or a direction in the nature thereof had been given a very wide scope in the conditions prevailing in this country and it is to be issued wherever there is a public duty and there is a failure to perform and the courts will not be bound by

technicalities and its chief concern should be to reach justice to the wronged. We are not dilating on or diluting other requirements, which would ordinarily include the need for making a demand unless a demand is found to be futile in circumstances, which have already been catalogued in the earlier decisions of this Court. (emphasis supplied)”

26. This Court will now delve upon the fact whether a review by way of medical test for the sensitive job position can be conducted by Court by way of writ of mandamus under Article 226. The Court cannot interfere by way of review of medical test for the job authority conducted by the Appropriate Authority unless there is some error or negligence on the part of the authority conducting such test. In cases, there is a differential treatment of the candidates, illegality in the way the test was conducted or any such other circumstances in which the medical test is conducted, which are so grave that it merits interference of this Court for doing justice.

27. The decision of the medical fitness cannot be indefinite on the ground of such allegations made by any candidate. It will lead to indefinite delay in appointing the successful candidates to the requisite position.Once the medical examination have attained finality, there can be no interference therewith, at the mere asking of a candidate which did not qualify the said examination.

28. The abovesaid principle has been enunciated by the Division Bench of this Court in the judgment of Pooja v. Union of India 2021 SCC OnLine Del 3068:

“7. It is the prerogative of the respondents, as the employer to lay down the medical requirements for employment. Unless the petitioner meets the standard prescribed in the Medical Manual, no such direction as sought in the writ petition can be issued.

Reference in this regard may be made to recent decisions of this Bench in Ishwar Singh v. Union of India 2021 SCC OnLine Del 2573 (DB), Arun Kumar v. Union of India 2021 SCC OnLine Del 1088 (DB) and judgement dated 18th May, 2021 in W.P. (C) 5353/2021 titled Madhusudhana P.S. v. Union of India 2021 SCC OnLine Del 2437 (DB). It has further been held in decisions of this Court in KM. Priyanka v. Union of India W.P. (C) 10783/2020 and Dharmraj Jat v. Union of India W.P. (C) 8692/2019 [Special Leave Petition (Civil) No. 8543-8544/2020 preferred against which, was dismissed on 16th July, 2020], copies of which have been filed by the respondents along with their counter affidavit, that once doctors of the Forces, who are well aware of the requirements of the Forces in which the recruited personnel are to work, have formed an opinion that a candidate is not medically fit for recruitment, opinion of private or other government doctors to the contrary cannot be accepted. In fact, this Bench in its judgment dated 21st May, 2021 in W.P. (C) 4662/2021 titled Deepak Kumar v. Union of India 2020 SCC OnLine Del 1284 (DB) has held that the opinion of the medical experts of the respondents has to prevail unless a doubt is created against such an opinion or any error in the conduct of the medical examination is shown. No such case is made out in the present petition.”

29. The said principle has been reiterated by the Division Bench of this Court in the judgment of Nitin Jakhar v. Union of India, 2021 SCC OnLine Del 3663 as follows:

"8. We have also enquired from the counsel for the petitioner, whether the medical standards prescribed for admission to NDA were disclosed to the doctors from whom certificates have been obtained and whether the said doctors have opined the petitioner to be medically fit in accordance therewith. 9. The counsel for the petitioner, again fairly admits that the doctors were also not apprised of or aware of the prescribed medical standards. 10. In the aforesaid circumstances, no purpose will be served in entertaining such a petition, which is lacking even in cause of

action therefor. Only when a case of the findings of the Medical Board being contrary to the medical standards prescribed are prima facie made out, can such a petition be entertained.”

30. Furthermore, the Court will now discuss upon the aspect of medical examination in cases where, the nature of the post for which the medical test is conducted, is of sensitive nature. In such cases, the Court should bear in mind the fact that the standard of physical fitness for the such sensitive positions is more stringent than for the civilian employment in any other position. These positions are such which require the candidate to be medically fit to perform his duty well.

31. The said principle has been enunciated by Divison Bench of this Court in the judgment of in Km. Priyanka v. Union of India, 2020:DHC:3648-DB as follows:

“8. We have on several occasions observed that the standard of physical fitness for the Armed Forces and the Police Forces is more stringent than for civilian employment. We have, in Priti Yadav Vs. Union of India 2020 SCC OnLine Del 951; Jonu Tiwari Vs. Union of India 2020 SCC OnLine Del 855; Nishant Kumar Vs. Union of India 2020 SCC OnLine Del 808 and Sharvan Kumar Rai Vs. Union of India 2020 SCC OnLine Del 924, held that once no mala fides are attributed and the doctors of the Forces who are well aware of the demands of duties of the Forces in the terrain in which the recruited personnel are required to work, have formed an opinion that a candidate is not medically fit for recruitment, opinion of private or other government doctors to the contrary cannot be accepted inasmuch as the recruited personnel are required to work for the Forces and not for the private doctors or the government hospitals and which medical professionals are unaware of the demands of the duties in the Forces. In fact, the case of Priti Yadav (supra) also related to „cubital valgus‟. It is also to be noted that the specialists that the petitioner had consulted had also found that

the petitioner suffered from „cubital valgus‟ and therefore, the findings by the Medical Boards were not wrong. 9. What may seem as a minor difference in the assessment of the Civil doctors in comparison to the assessment of the Medical Boards, may blow up into a serious health condition during the course of service with the CAPFs. It is not in the interest of either the Police Forces or candidates that their medical problems are brushed aside only on the plea that it was a question of employment. The general health of candidates would be permanently impacted due to the stress, both physical and mental, on account of these medical shortcomings. On the other hand, the government would be saddled with a Police Force where such personnel would seek soft postings because of their health conditions and low medical category. This would lead to dissatisfaction amongst the personnel in the Forces as some people, who ought not to have been taken into the Forces, would always benefit, whereas the others would be mostly faced with hard postings and duties.”

32. In the present facts, the petitioner qualified in the CBT exam for the post of Junior Executive (Air Traffic Control) pursuant to which the petitioner was called for documents verification, voice test and test for psychoactive substances. The petitioner cleared all tests except wherein he failed in the test namely, Amphe Tamine Screen Urine Test. The petitioner hence, did not qualify the said post.

33. It is contended by the petitioner that he was not able to pass the said test since he was consuming medicine for boil on his thigh and has never consumed any substance which contains a psychoactive substances. The respondent countered the said contention of the petitioner that the petitioner neither disclosed the consumption of any medicine during medical examination nor produced ever produced any prescription to buttress his contention. It is merely an after-thought of the petitioner to stall the process of recruitment.

34. There is provision for conducting such test for the second time. Moreover, a negative test for psychoactive substances is quintessential requirement for being qualified to the post of Junior Executive (Air Traffic control in pursuance Advertisement No.02/2022 under the Airport Authority of India).

35. This Court is of the view that the petitioner has not been prompt by not disclosing that the petitioner consumed any such medicine/substance which contains psychotropic substance. Moreover, the petitioner is not able to produce any prescription to bolster the said contention.

36. Moreover, the Court has to take into account the sensitive post requiring the candidates to work in the Air Traffic Control and therefore medical fitness, specifically a negative test for psychoactive substances is a crucial requirement.

37. In case the prayer of the petitioner for reviewing the medical test is allowed, it will open gates for all the candidates who failed by the medical test to seek review of the test. Under Article 226 of the Constitution of India, this Court cannot intervene and exceptionally carve out an opportunity to conduct medical test second time for the petitioner. The petitioner should have disclosed the fact of taking medicine which can affect his medical test namely, amphe tamine screen urine. Hence, the petitioner does not have legal right to be entitled for such medical test again.

38. A prerogative writ, like, a Mandamus cannot be demanded ex debito justiatiae, it may be issued by the Court’s discretion. The Courts under Article 226 must refrain from issuing a writ of mandamus in cases there is no such illegality in the functioning of the statutory authorities against which the writ has been preferred.

39. The Court should exercise its power under Article 226 very cautiously and sparingly in exceptional circumstances only in a given case where it is demonstrated that there is something palpably erroneous in the process of recruitment by the statutory authority.

40. In view of the discussion in the foregoing paragraphs, I do not find any merit in the instant petition and is liable to be dismissed.

41. Accordingly, the instant petition along with pending applications, if any, stands dismissed.

42. The order be uploaded on the website forthwith.

Ajay Meena v. Airport Authority of India and Anr

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