* THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND * THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO. 14919 OF 2000 % Dated 09.11.2006 # K. Gangadhar. …. Petitioner Vs. $ Andhra Pradesh State Road Transport Corporation rep.,by its Vice Chairman & Managing Director, Hyderabad and another. …. Respondents ! Counsel for the Petitioner: Sri L. Nanda Kishsore ^ Counsel for the Respondents: Sri V.T.M. Prasad, Standing Counsel <GIST: > HEAD NOTE: ? Cases referred [1] 1981)4 SCC 335 2 (1983(1) ALT 408 3 AIR 1956 SC 520 4 AIR 1962 SC 36 5 (1967)2 SCR 29 6 AIR 1974 SC 1 7 (2001)7 SCC 708 8 (2005)1 SCC 394 9 (1998)7 SCC 676 10 1995 Suppl. 4 SCC 584 11 (1961)2 SCR 931 12 AIR 1997 SC 128 13 2006(2) ALT 82 (D.B.) THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 14919 OF 2000 ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) “Cosmetically unacceptable to the public” is reason enough to deny employment to any category of posts in the Andhra Pradesh State Road Transport Corporation. This is not an “off the cuff” remark but the official stand of the Corporation in its counter affidavit filed before this Court. Efficiency is of no consequence, it is a person’s looks/physical appearance that matters. “Vitiligo”, a skin disorder, wherein white/grey patches are formed in parts of the body for lack of proper pigmentation, has resulted in the petitioner being found medically unfit for appointment as a Conductor in A2 category. Lest they be subjected to the criticism that, in the guise of recruiting Conductors, the respondent Corporation is, in fact, holding a beauty pageant, the possibility of deterioration/loss of vision in the distant future is cited as a consequence of contracting “Vitiligo”. Pursuant to a notification issued by the respondents, inviting applications for the posts of Conductor, the petitioner appeared for the test and interview held on 04.03.1998 and was selected. He was subjected to a medical examination. The Medical officer, in his report dated 27.03.1998, opined that the petitioner was unfit, for being appointed to the post of Conductor, as he suffered from “extensive Vitiligo”. The petitioner approached the 2nd respondent requesting that a medical examination be conducted once again, contending that he is fit to discharge the functions of a Conductor and that his skin disorder “Vitiligo” would not affect his ability to discharge the duties attached to the post. In the medical examination held again on 20.04.1998, the earlier medical opinion was reiterated. Questioning the action of the respondents in declaring him medically unfit for appointment as a Conductor, the petitioner filed W.P. No. 15813 of 1998, which was dismissed on 27.08.1998. Aggrieved thereby he filed Writ Appeal No. 122 of 1999 and the Division bench, while disposing of the appeal by its order dated 17.02.1999, observed: “The appellant-writ petitioner who was selected for the post of Conductor Grade-II in the respondent- Corporation was denied appointment on the ground that he was found to be unfit on medical examination as he was afflicted with skin disease ‘vitiligo’. In the impugned order, the learned single judge has given a direction to the respondents to consider the representation of the appellant in view of the nature of the disease. The learned counsel for the respondent-Corporation has produced before us a paper which refers to the importance of the disease vitiligo in medical examination to be undergone by a selected candidate before recruitment. The learned Counsel for the respondents contend that the disease is considered as a disqualification for appointment for the reason that the disease will be afflicted because of lack of pigmentation of the skin and the person suffering from such disease will have photo sensitivity problem i.e, person is prone for sun burning and will likely to suffer progressive vitiligo ie., defective vision because of the depigmentation of choroide and retina, apart from the fact that the person may not be accepted cosmetically by the public. We are inclined to go into all those aspects. In spite of the above, we hope that the respondent-Corporation will consider the representation of the petitioner sympathetically as directed by the learned single judge and, if so advised, take second opinion regarding the disease of the appellant from the experts for the purpose of recruitment. The Writ Appeal is disposed of accordingly. No costs.” The petitioner was thereafter called upon to undergo a medical examination before the Medical Officer (Dermatology), RTC Hospital, Tarnaka. After he underwent a medical examination the petitioner was informed by the Medical Officer, in his letter dated 06.04.1999, that he was medically unfit to be appointed to the post of Conductor (A2 category). The 2nd respondent, in its proceedings dated 13.05.1999, reiterated what was stated by the Medical Officer. According to the petitioner, except passing the very same order which was passed earlier and repeating the very same observations, the respondents had neither applied their mind nor had they implemented the order of this Court which required them to consider his case sympathetically. Petitioner would submit that it was not open to a State Public Sector Undertaking to choose employees by the colour of their skin and that the skin ailment he suffered from did not, and would not, affect his mental and physical capacities to discharge the duties of a Conductor. In the counter-affidavit, filed on behalf of the respondent Corporation, it is stated that during the course of medical examination the petitioner was found medically unfit for appointment to the post of a Conductor (A2 category) due to extensive Vitiligo, vide medical report dated 27.03.1998, that he had again approached the Office of the Regional Manager, Nizamabad seeking re-examination, that he was again directed for re-examination on 20.04.1998 and was again found medically unfit for the post of Conductor. Reference is made to the order of the Division bench, in Writ Appeal No. 122 of 1999 dated 17.02.1999, wherein the Corporation was directed to consider the petitioner’s representation sympathetically duly taking a second opinion regarding the disease of the appellant from the experts for the purpose of appointment and that, on the basis of the order of the High Court in Writ Appeal No. 122 of 1999 dated 17.02.1999, the petitioner was directed to appear for re-examination before the Executive Director (Medical), Tarnaka Hospital, Hyderabad and the Medical Officer (Dermatology) had examined the petitioner and had informed him, vide letter dated 06.04.1999, that he was considered medically unfit for the post of Conductor (A2 category). Respondents would refer to Regulation 7 of the APSRTC Recruitment Regulations and to the Medical Manual, more particularly to sub-clause (c) of Clause 4 which requires the Corporation to reject cases where conditions rendering the association of candidates with other objectionable disorders are found. As examples, Albinism and “Progressive Vitiligo” are mentioned. Respondents would state that a person afflicted with Progressive Vitiligo is prone to sunburn and likely defective vision and that, as per the rules of the Corporation, a person suffering from progressive Vitiligo was not eligible for any post in the Corporation and that any such appointment would be contrary to the rules and regulations. Since the Medical Manual of the respondent Corporation prohibits candidates, suffering from “progressive vitiligo”, from being appointed to any posts, the petitioner herein filed W.P.M.P. No. 21727 of 2006 seeking permission to amend the prayer in the writ petition to include a challenge to the validity of the conditions imposed in the Medical Manual. The amendment petition in W.P.M.P. No. 21727 of 2006, is hereby ordered. In the affidavit, filed in support of W.P.M.P. No. 21727 of 2006, the petitioner would challenge the validity of Clause 4(c) of the Medical Manual, and to his medical invalidation, on the ground that he suffered from Vitiligo, as unconstitutional, irrational, arbitrary and in violation of Articles 14, 19(1)(g) and 21 of the Constitution of India. Petitioner would submit that the ailment he suffered from did not, in any remote manner, incapacitate him in performing his duties and that medically disqualifying his candidature was illegal. Petitioner would seek a mandamus from this Court to declare Rule 4(c)(ii) of the Medical Manual, in so far as it related to the skin ailment “Vitiligo”, ultravires Articles 14, 19(1)(g) and 21 of the Constitution of India. In the Additional Counter-affidavit, filed on behalf of the respondents, it is stated that under Regulation 7(1) of the A.P.S.R.T.C. Employees (Recruitment) Regulation 1966, no person shall be eligible for appointment to any post in the service by direct recruitment unless he satisfies the Corporation (i) that he was of sound health, possessed active habits and was free from any bodily defect or infirmity, that according to note (1) of Regulation 7, the competent authority may, by a general or special order, specify the standards of physical fitness to be fulfilled by candidates and different standards may be prescribed for different categories of posts. It is stated that in accordance with the said Regulations candidates, who are selected for appointment to direct recruitment posts, are directed to appear before the Medical Officer of the Corporation for ascertaining their medical fitness and, based on the fitness certificate issued by the Medical Officer, appointments are made. It is stated that Medical Officers issue fitness certificates after examining the eye vision, general physique and after ascertaining whether the candidate is of sound health, whether he is free from bodily defect or infirmity and that it is only these candidates, who are considered for appointment in the services of the Corporation. With regards the petitioner’s contention that, since he was interviewed on 04.03.1998 and as the Medical Manual disqualifying his candidature was issued in 1999, the conditions prescribed therein cannot have retrospective effect, respondents would state that the petitioner was examined by the Medical Officer, APSRTC Hospital, Tarnaka on 27.03.1998 and was found unfit for the A2 category post of Conductor due to extensive vitiligo, that on appeal the Executive Director (Medical) had examined him and had rejected his appeal observing that he was unfit for the post of Conductor (A2 category) due to extensive vitiligo, i.e., defective vision because of depigmentation of choroide and retina, apart from the fact that the person may not be accepted cosmetically by the public. It is stated that the Manual was published in the year 1999 for the sake of convenience of Medical Officers as well as Unit officers in the Corporation, that it had nothing to do with the instructions already in existence and that it could not be said that there were no instructions prior to the publication of the Medical manual. Reference is also made to the fact that, even before the Division Bench of this Court in W.A. No. 122 of 1999, it was contended by the Corporation that the disease was considered as a disqualification for appointment for the reason that the disease arises because of lack of pigmentation of the skin and the person suffering from such disease will have photo sensitivity problem i.e., the person is prone to sun burning and is likely to suffer progressive vitiligo. It is stated that pursuant to the directions of the Division bench, in Writ Appeal No. 122 of 1999, the petitioner was directed to appear before the Medical Officer (Dermatology) of the APSRTC Hospital, Tarnaka for a second opinion and that, on being examined by the Medical Officer, a specialist, it was confirmed that he had extensive vitiligo which was a disqualification for all categories of posts and therefore the petitioner’s candidature for appointment to the post of Conductor in A2 category was rejected. Respondents would submit that pursuant to the Medical report the Regional Manager, Nizamabad, vide proceedings dated 13.05.1999, had informed the petitioner that he was not entitled for appointment as a Conductor. Respondents would deny the petitioner’s contention that his medical invalidation, due to his suffering from the skin ailment vitiligo, was irrational, arbitrary and in violation of Articles 14, 19(1)(g) and 21 of the Constitution of India. According to the respondents, as per the APSRTC (Recruitment) Regulations, 1966, the Corporation had the right to appoint able bodied persons in the service of the Corporation and persons who were not fit for appointment could not allege discrimination as the Medical Officer was the competent person to decide about the disease. Along with the Counter-affidavit, the respondents have filed copies of the Medical certificates issued on 27.03.1998, the letter of the Medical Officer dated 06.04.1999, as also the Medical Manual. In the Medical Certificate dated 27.03.1998, it is stated that the petitioner was unfit for A2 category due to extensive vitiligo. The said certificate also contains an endorsement that the appeal preferred by him was rejected on 23.03.1998 and that he was unfit for A2 category because of extensive vitiligo. In the letter dated 06.04.1999 the Medical Officer (Dermatology) APSRTC Hospital, Tarnaka would state that the petitioner was examined on 06.04.1999 and it was confirmed that he was having extensive vitiligo which was a disqualification for all categories of posts in APSRTC as per the existing medical regulations and he was therefore considered unfit for the post of Conductor in A2 category. Sri L.Nanda Kishore, learned counsel for the petitioner, would submit that since the medical manual came into force only in the year 1999, much after the petitioner was medically examined in March, 1998, the restrictions imposed in the medical manual does not have retrospective operation and cannot be applied to reject the petitioner’s claim for appointment as conductor in A-2 category. Learned counsel would submit that Vitiligo is a skin disorder which is purely cosmetic. It is neither contagious nor does it affect the person’s ability to discharge his duties. According to the learned counsel there is no scientific evidence to show that Vitiligo results in loss of vision. Learned counsel would submit that a person cannot be refused employment merely on the basis of his looks and that the petitioner, in effect, has been denied employment only on the ground that he was found “cosmetically unacceptable to the public”. Learned counsel would place reliance on Air India v. Nergesh Meerza[1] to submit that the action of the respondents in rejecting the petitioner’s candidature for appointment to the post of conductor in A.P.S.R.T.C. is wholly arbitrary and in violation of Articles 14 and 16 of the Constitution of India. Learned counsel would submit that while Clause 4(c)(ii) of the Medical Manual prohibits appointment of candidates who suffer from “Vitiligo” from being directly recruited in the Corporation, there is no provision in the regulations for termination of the services of an employee, who is already in the service of the Corporation, merely on the ground that he has contracted Vitiligo, after his employment in the respondent-Corporation. Learned counsel would submit that since all persons, suffering from ‘Vitiligo’, constitute one single class, a further classification of persons suffering from vitiligo, between those who seek appointment and those who are already in employment, is patently discriminatory and in violation of Articles 14 and 16 of the Constitution of India. Learned counsel would submit that Regulation 7 of the A.P.S.R.T.C. Regulations, which requires a person to be appointed to be of sound health, to possess active habits and to be free from any bodily defect or infirmity, cannot be so interpreted as to require the respondent – corporation to insist on hundred percent medical fitness without any reference to the duties to be discharged by such candidates. Learned counsel would submit that the physical appearance of an individual has no direct nexus with the functions to be discharged as a conductor and merely because a person suffers from Vitiligo he should not be disentitled from being appointed as a conductor in the respondent corporation. Learned counsel would place reliance on Smt. K. Indira v. State Bank of India[2] in this regard. Learned counsel would submit that Clause 4(c)(ii) of the Medical Manual is arbitrary, discriminatory, unreasonable and ultra vires Articles 14 and 16 of the Constitution of India. Learned counsel would submit that since the petitioner satisfied all the other physical and medical standards prescribed for appointment as a conductor in the respondent – corporation, this Court should issue a mandamus to the Corporation to appoint him as a conductor. Sri V.T.M. Prasad, learned Senior Standing Counsel for the respondent – corporation, on the other hand, would submit that the medical standards prescribed in the medical manual are but a compilation of all previous executive instructions issued by the Corporation, from time to time, and only for the sake of convenience are now compiled in the form of manual. Learned counsel would submit that these medical standards existed even when the medical examination was conducted on the petitioner in March, 1998 and as such cannot be held to have been applied retrospectively. Learned counsel would submit that the medical standards, required to be satisfied for seeking employment in the respondent – corporation, are matters of policy for the Corporation, in its wisdom, to determine and that this Court, in proceedings under Article 226 of the Constitution of India, would not sit in appeal over such policy decisions. Learned counsel would submit that since these medical standards are made uniformly applicable to all persons seeking employment in the respondent – corporation the question of discrimination does not arise. Learned counsel would submit that a conductor is always in contact with passengers and it in this context that the respondents had stated that he was found “cosmetically unacceptable to the public”. Learned counsel would submit that “Vitiligo” ultimately results in loss of vision and that the Corporation cannot be forced to take employees who are likely to lose their eye sight in future. Before examining the rival contentions it is necessary to refer to the applicable statutory provisions and the physical and other standards prescribed in the medical manual. The APSRTC Employees Recruitment Regulations 1966, was approved by the State Government, under Section 45(1) of the Road Transport Corporation Act, 1950 and was notified in G.O.Ms. No. 780 dated 20.04.1966. These regulations apply to all classes of services under the Corporation except to the extent otherwise expressly provided thereunder. Under Regulation 2 (iii) a person is said to be appointed to a post wherein, in accordance with the Regulations, he discharges for the first time the duties attached to such posts. Clause (ix) of Regulation 2 defines “direct recruitment” to mean appointment otherwise than by promotion or transfer from any post in the service of the Corporation. Clause (xvii) of Regulation 2 defines “Selection” to mean selection of a person for appointment to a post in the service of the Corporation by the selection committee, if any, appointed for the purpose under Regulation 6 or by the appointing authority in its discretion, when no selection committee has been appointed, provided that the Regulations, as regards the method of recruitment and qualification in respect of the post for which the selection is made, are fulfilled. Regulation 3 relates to appointment and qualifications. Under Regulation 3(1)(a), appointment to posts in the Corporation shall be made by direct recruitment. Under Regulation 3(2), the method of recruitment to each post, as specified in column 2 of Annexure-A, shall be as shown in the corresponding entry in column (3) thereof and the qualifications prescribed for each such post shall be as shown in the corresponding entry in column (4). The post of Conductor Grade II, under Class-III services, is required to be filled up by selection either by promotion or by direct recruitment. To be appointed by selection by direct recruitment the candidate must (a) have passed S.S.C. or its equivalent qualification (b) not be less than 153 cm in height and (c) be above 21 years of age and below 35 years of age on the 1st July of the year in which the recruitment is made. Under Regulation 4(1) all direct recruitment shall be made by the appointing authority from a list of approved candidates and such list shall be prepared to any general or special order of the Corporation by the selection committee, if any, appointed in this behalf. Regulation 7 relates to direct recruitment and reads as under: 7. Direct Recruitment: No person shall be eligible for appointment to any post in the service by Direct Recruitment unless he satisfies the Corporation. i. that he is of sound health, possesses active habits and is free from any bodily defect or infirmity; ii. that his character and antecedents are such as to qualify him for such service; and iii. that he has completed the age of eighteen years. Note: (1) The Competent Authority may, by a general or special order specify the standards of physical fitness to be fulfilled by candidates and different standards may be prescribed for different categories of posts; Regulation 9 relates to relaxation of the age limit and, under sub-regulation (1) thereof, notwithstanding anything in the Regulations the competent authority may, in exceptional circumstances and for reasons to be recorded in writing, make an order exempting any person or class of persons from the age limit prescribed therein. The A.P.S.R.T.C. Medical Manual, 1999 was made for the guidance of staff of all departments of the respondent Corporation dealing with medical examination and allied subjects. The Manual incorporates all the essential provisions contained in the instructions and clarifications issued thereon, from time to time, in a self-contained and readily understandable form. The provisions of the manual are subject to the existing rules and orders applicable to the respondent Corporation. The Medical Manual was issued under the authority of the Vice Chairman and Managing Director of the Corporation. The main object of a medical examination, under the Medical Manual, is to ensure adequate physical standard of employees both at the time of their recruitment, promotion and then periodical check up. The Medical Manual provides that the standard of physical fitness to be adopted should make due allowance for the age and length of service of any of the candidates concerned, that no person will be deemed qualified for appointment, to the Corporation’s services, who does not satisfy the appointing authority that he/she has no disease of constitutional affliction or bodily infirmity unfitting him/her or likely to unfit him/her for that service. The Medical Manual provides that the question of fitness involves the future as well as the present and that one of the main objectives of the medical examination is to secure continuous effective service and, in the case of candidates for permanent appointment, to prevent early retirement due to medical reasons or payment in case of premature death consequent to ill health. The Medical Manual, however, notes that the question is one of the likelihood of continuous effective service and that rejection of a candidate need not be advised on account of the presence of a defect which, in only a small proportion of cases, is found to interfere with continuous effective service. Part-I of the Medical Manual prescribes the procedure for medical examination for recruitment and periodical examination of employees in the A.P.S.R.T.C. It reads as under: 1. EXAMINATION OF CANDIDATES: For any appointment in APSRTC the candidate must pass Medical Fitness Examination. He/She must be in good health mentally, bodily and free from any defect likely to interfere for efficient performance of his/her duties. The medical examination for fitness to the candidates consists of the following: i. General Physical Examination. ii. Vision Test – Standards. iii. Physical measurements as prescribed in Recruitment Regulations. General Physical Examination: (1). Examiners have to use their own discretion to the scope of the general physical examination in each case and judge cases on their merits taking into consideration the prospective duties of the examinees. (2). Measurements of height, weight and chest to be recorded if specified. The Physical measurement prescribed for various posts are shown at Annexure-II. The skin, the connective tissues, and the circulatory, respiratory, digestive, nervous, genito-urinary, skeletal and muscular systems, will be subjected to such examination as is