LPA No.477 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH. LPA No.477 of 2009 in CWP No. 19782 of 2001 Date of decision: June 22, 2009. State Bank of India and another ....Appellants vs. Rajesh Babbar ....Respondent CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE UMA NATH SINGH. --- Present: Mr.Kapil Kakkar, Advocate, and Ms.Alka Chatrath, Advocate, for the appellants. -- J.S.KHEHAR,J. The Central Recruitment Board of the State Bank of India issued an advertisement in the Employment News in September 1999 inviting applications for appointment as Probationary Officers. The last date for receipt of the aforesaid applications was 21.10.1999. Through the aforesaid advertisement, 475 posts of Probationary Officers had been advertised. Out of the aforesaid posts, 238 posts were to be filled from amongst the General Category. Reservation was also made in favour of Scheduled Caste (72 posts), Scheduled Tribes ( 36 posts) and other Backward Classes (129) posts. The aforesaid advertisement inter alia laid down the following eligibility criteria:- “a) ELIGIBILITY CRITERIA. Educational Qualifications. Degree from a recognised University or any equivalent LPA No.477 of 2009 2 qualification recognised by the Government of India. Candidate must possess the required educational qualification as on the date of application. b) AGE LIMIT Not below 21 years and not above 30 years as on 01.07.1999 i.e., applicants must have been born between Ist July,1978 and 2nd July, 1969 (both days inclusive)”. At the time of issuance of the advertisement respondent- Rajesh Babbar had qualified the Matriculation Examination in 1991, Senior Secondary Examination in 1993,and the Bachelor's Examination in Commerce in 1996. After the issuance of the advertisement, the respondent had acquired the Intermediate Examination Certificate from the Institute of Company Secretaries of India in 2000, and had also qualified the Master's Examination in Commerce (Previous) in July 2000. Since the respondent fulfilled the eligibility conditions, he responded to the aforesaid advertisement issued in September 1999, well before the last date of submission of the application forms. The appellant-bank issued a corrigendum to the advertisement (issued in September 1999) in January 2000. Through the instant corrigendum the appellant-bank clarified that 14, out of the 475 advertised posts of Probationary Officers, would be filled up by way of reservation out of the candidates suffering from disability of not less than 40%. In the first instance, the appellant-bank required the applicants to appear in a written test. The respondent-Rajesh Babbar appeared for the written test on 20.8.2000. Soon thereafter, through a communication dated 5.3.2001, the respondent was informed that he had qualified the written test and as such had qualified for the interview. The appellant through a letter LPA No.477 of 2009 3 dated 21.3.2001, informed the respondent to appear for the interview on 19.4.2001. The respondent-Rajesh Babbar appeared before the interviewing board on the appointed date. The appellant-bank then informed the respondent Rajesh Babbar through a letter dated 30.72001, that he had been selected for appointment as a Probationary Officer with the State Bank of India. Having successfully participated in the process of selection, the respondent Rajesh Babbar appeared for a medical examination on 18.8.2001. Although the respondent was of the view that he was medically fit for discharging the duties of the post of Probationary Officer it seems that the medical board which conducted his medical examination entertained a contrary view. Accordingly, through a communication dated 19.10.2001, the respondent was informed that he was not medically fit for appointment against the post of Probationary Officer. On the same day i.e., 19.10.2001, the respondent Rajesh Babbar addressed a communication to the appellant-bank seeking details of the basis on which the authorities had found him medically unsuitable for appointment. The pleadings of the case reveal that the respondent-Rajesh Babbar was found medically unsuitable for the post of Probationary Officer on account of his impaired vision. According to the respondent, during the course of his examination at the Civil Hospital, Fazilka, the Medical Officer had certified that the vision of his right eye was absolutely normal i.e.,6x6, however, the vision of his left eye was certified as 1x60. It is, therefore, apparent that the vision of the respondent-Rajesh Babbar from his right eye was totally normal, whereas, his vision from the left eye was substantially impaired. Despite the aforesaid, the contention of the respondent-Rajesh LPA No.477 of 2009 4 Babbar was, that he could not be denied appointment against the post of Probationary Officer by the appellant-bank, on account of his impaired vision in the left eye, as the same would not adversely effect his abilities to discharge duties of the post of Probationary Officer. Since the claim of the respondent for appointment as Probationary Officer was not being acceded to on account of the fact that he had been declared medically unfit for the post of Probationary Officer, he approached this Court by filing CWP No.19782 of 2001. In the written statement filed by the appellant-bank it was expressly averred that the action of the appellant-bank in denying him appointment was expressly based on the fact, that the vision from his left eye was impaired. Paragraph 1 of the preliminary submissions in the written statement sums up the stance of the State Bank of India. The same is accordingly being extracted hereunder:- “ That the present writ petition deserves to be dismissed as the petitioner has no claim whatsoever for appointment to the post of Probationary Officer in State Bank of India pertaining to the vacancies advertised by the Bank in the month of September 1999. As per the terms and conditions of the advertisement (Annexure P-2), the general instructions para XI (j) specifically provides that the appointment of the selected candidates would be subject to the his or her being declared medically fit by Medical Officers appointed approved by the bank. The clause XI (j) is reproduced hereunder:- “Clause XI (j) Appointment of selected candidates is subject to his/her being declared medically fit by Medical Officer (s) appointed/approved by the Bank”. Though the petitioner was issued a letteer dated 30.07.2001 LPA No.477 of 2009 5 (Annexure P-5) whereby he was informed that he has been selected for appointment in State Bank of India to the post of Probationary Officer, yet it was specifically stated in para No.2 of the same letter that the letter was not an offer of appointment and he would hear further in the matter from the concerned local Head Office of the Bank. Thereafter, the Petitioner was examined by the Doctors and from the Medical Examination Reports it was observed that he was not medically fit for the appointment of Probationary Officer. The Petitioner was examined by Dr.Devinderjit Singh Brar, Eye Surgeon of Ludhiana who specically observed that “Old Traumatic injury L/E leading to the following abnormation:- i) Dir.Squint. ii) Initially disclocated lens. iii) Jatdees of healed curindsic. iv) Opramatic. From the medical report, it was revealed that number of left eye of the Petitioner was +9.0, Syl. -1.5 and it was further observed by the doctor that the hand movement at one foot and the same cannot be further corrected. A copy of the report dated 23.08.2001 submitted by Dr.Devinderjit Singh Brar is attached to this written statement as Annexure R-1. The respondent bank has guidelines to be followed by the Medical Officers/ bank's authorised doctors. Civil surgeons/other doctors carrying out medical examinations of candidates for appointment/promotions in the bank. The relevant guidelines with regard to the eye sight given in clause 7(I) under the heading Opthalmic System is reproduced hereunder for the ready reference to this Hon'ble High Court:- vii) Opthalmic System. If any candidate is suspected to have refractive error in either or both eyes organic or progressive disease of any part of the eyes, sequint colour blindness and night blindness or any other ocular condition/disease a thorough opthalmic check-up and LPA No.477 of 2009 6 report from opthalmic Surgeon is essential. Accurate assessment of vision is obviously most important for candidates for Bank's service in view of the nature of their duties. i) Vision should be capable of correction to 6/6 with use of glasses. Total myopia or hypermetropia over “6.00 D+ 6.00 D” in each eye (Total means algebrical sum of Sph. +Cyl. Axes) should be regarded as disqualification. ii) Ocular conditions other than visual acuity : Any organic disease or a progressive refractive error likely to lower the visual acuity should be considered as a disqualification. iii) Retraction, fundal examination and colous vision is a part of the normal medical examination by the specialist in all cases of visual defects. iv) A normal colour vision is essential for promotion/appointment in any cadre, squint would be a disqualification when binocular vision is absent ( in the case of Messengers and Hamals binocular vision may not be necessary). The eye should be corrected to 6/6 with glasses and not with contact lenses. A copy of guidelines is attached to this written statement as Annexure R-2. Before conducting the medical examination every candidate is supposed to fill up a personal statement. The petitioner filled up his personal statement on 23.08.2001. In clause 6(G), the statement of the petitioner is reproduced hereunder:- “ 6(G) Have you suffered from defects in hearing or eye sight ? Give details – Yes.” Though the petitioner said “yes” with regard to the defects, but he intentionally did not give any details. Thus, the petitioner intentionally withheld the ailment/defect in his eye sight. A copy of the personal statement dated 23.08.2001 is attached to this written statement as Annexure R-3. It is in these circumstances, the Petitioner was advised vide letter dated LPA No.477 of 2009 7 09.10.2001 (Annexure P-6) that he cannot be appointed as Probationary Officer in the Bank. Thus, the petitioner being medically unfit cannot seek any relief whatsoever from this Hon'ble High Court and the writ petition deserves to be dismissed”. Despite the detailed reply filed by the State Bank of India opposing the claim raised by respondent-Rajesh Babbar this Court was pleased to admit CWP No.19782 of 2001, for regular hearing. Whilst CWP No.19782 of 2001, was pending for regular hearing, the respondent-Rajesh Babbar filed C.M.No.4749 of 2008, seeking early/quick disposal of his writ petition by pleading, inter alia, that the controversy raised by him in the writ petition was identical to the one adjudicated upon this by Court in Shikha Malhotra v. State Bank of India (CWP No.17024 of 2006, decided on 6.12.2007). In this behalf, it would be pertinent to mention that Shikha Malhotra had also applied for appointment against the post of Probationary Officer with the appellant i.e. the State Bank of India. Just like in the case of respondent-Rajesh Babbar, Shikha Malhotra had also been denied appointment on account of impaired vision. The facts in Shikha Malhotra's case (supra) were that although her vision in the left eye was normal i.e.,6x6, she had an artificial right eye. In other words, she had no vision in her right eye. While allowing the writ petition filed by Shikha Malhotra, this Court had placed reliance on the decision rendered by the Supreme Court in Amit v. Union of India and another (2005) 13 SCC 721, wherein, the Apex Court, had inter alia, held as under:- “ That apart, the writ petition, although a visually impaired lady had not asked for any special favour for selection to the post of Probationary Officer. The writ petitioner without asking LPA No.477 of 2009 8 for any favour had only applied for writing the examination for selection not as a reserved handicapped candidate but along with general candidates who were allowed by the Board to sit and write the examination. Since the writ petitioner was similarly situated with other general candidates, and the writ petitioner had not asked for any advantage for being a visually impaired candidate, we failed to understand why she was not permitted to sit and write the examination for the post of Probationary officer in the Bank. At the risk of repetition, it may be reiterated that the writ petitioner fulfilled all the conditions mentioned in the advertisement for the post. The primary object which is guaranteed by Article 16(1) is equality or opportunity and that was violated by the Board by debarring the writ petitioner from appearing in the examination on the mere fact of disability which was not mentioned in the advertisement and which according to the writ petitioner is not an impediment for the post. We are therefore, of the view that the action of the Board was arbitrary, baseless and was in violation of the right of the petitioner under Article 16(1) of the Constitution.” While opposing the aforesaid civil miscellaneous application, the appellant-bank filed a parawise reply to civil miscellaneous application No.4779 of 2008. In its reply, the appellant-bank, inter alia, contended that the facts and circumstances of the case of respondent-Rajesh Babbar were distinguishable from the facts and circumstances of the case of Shikha Malhotra. It was also submitted that the judgment rendered by this Court in Shikha Malhotra's case (supra) had not been accepted by the appellant-bank, inasmuch as, it had preferred a petition for Special Leave to Appeal before the Supreme Court, which was still pending consideration. Paragraph 8 of the reply filed by the appellant-bank demonstrates the position adopted by LPA No.477 of 2009 9 the appellant-bank in response to the claim made by the respondent-Rajesh Babbar, that the controversy raised by him was squarely covered with the decision rendered in Shikha Malhotra's case (supra). Paragraph 8 of the reply filed by the appellant-bank is accordingly being extracted hereunder:- “ That in reply to the contents of para No.8 it is submitted that the judgment mentioned is not applicable to the facts and circumstances of the present case. In the instant case the respondent Bank has categorically stated that duties of the bank being onerous cannot be performed by visually impaired person and therefore he cannot be appointed as probationary officer in the respondent Bank. That in reply to the contents of para 9 it is submitted that the said orders Annexures P-9 were passed in CWP no.17024 of 2006 titled as Sikha Malhotra Vs. State Bank of India. However, against the said judgment the State Bank of India had preferred S.L.P which bears No.SLP(C) 6015 of 2008 titled State Bank of India and anr vs. Sikha Malhotra which is fixed for further hearing in the Apex Court on July 18, 2008. As such it cannot be said that the controversy in question stands settled. Hence no reliance can be placed on the aforesaid judgment which is under challenge in the Apex Court.” During the course of regular hearing of CWP No.19782 of 2001, on 4.11.2008, a learned Single Judge of this Court expressly recorded, that it was not disputed at the hands of the appellant-bank that the claim raised by Rajesh Babbar (who had filed CWP No.19782 of 2001) was squarely covered with the decision rendered in Shikha Malhotra's case (supra). The learned Single Judge also recorded, that the appellant-bank did not dispute the fact that the petition for Special Leave to Appeal, had been dismissed by the Supreme Court on 18.7.2008. Accordingly, the Single Bench allowed CWP No.19782 of 2001 on 4.11.2008. The order passed by LPA No.477 of 2009 10 the learned Single Bench is subject matter of challenge at the hands of the appellant-bank through the instant Letters Patent Appeal. The primary contention advanced at the hands of the learned counsel for the appellants is that the judgment rendered by this Court in Shikha Malhotra's case (supra) cannot be made the basis of the determination of the claim raised before this Court by respondent-Rajesh Babbar. A series of contentions raised in this behalf were advanced by the learned counsel for the appellant-bank. To be fair to the learned counsel for the appellant, his submissions on the instant issue are being noticed hereunder:- Firstly, it was submitted that the facts and circumstances in Shikha Malhotra's case (supra) (CWP No.17024 of 2006) were entirely different from the facts and circumstances of the claim raised by respondent-Rajesh Babbar. In this regard, it was submitted that in case of Shikha Malhotra (supra), there was a different advertisement (issued in 2005) wherein reservation for visually handicapped persons was specifically provided, whereas, in the advertisement (issued in 1999) to which the respondent-Rajesh Babbar had responded, no such reservation for visually handicapped persons was provided. It was sought to be emphasised that reservation provided in the advertisement to which the respondent-Rajesh Babbar had applied expressly reserved 14 posts out of 475 posts (through a corrigendum issued in January 2000) for disabled candidates, only where the disability was locomotor impairment (not less than 40%). It is therefore, sought to be submitted that there was no question of the respondent-Rajesh Babbar's claim being compared with the case of LPA No.477 of 2009 11 Shikha Malhotra. Secondly, it is submitted, that at the time when Shikha Malhotra had applied for appointment against the post of Probationary Officer (in response to an advertisement issued in 2005) the appellant-bank had issued guide-lines in the year 2003 whereby persons with blindness or with no vision were treated as eligible for appointment to the post of Probationary Officer, from amongst the category of handicapped persons. Since the guide-lines issued by the appellant-bank in 2003 were not available at the time when the respondent-Rajesh Babbar participated in the process of selection, he could not claim any benefit on the basis thereof. For the instant reason also, it is the vehement contention of the learned counsel for the appellant, that it was wholly unjustified to adjudicate upon the claim of the respondent Rajesh Babbar in terms of the decision rendered by this Court in Shikha Malhotra's case (supra). The third contention advanced by the learned counsel for the appellant was that in terms of the provisions of sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955, the “appropriate government” has to identify posts in different establishments which can be filled up by way of reservation from amongst persons with disabilities. So far as the present controversy is concerned, it is submitted that the Central Government being the “appropriate government” had not identified the posts of Probationary Officers at the time of issuance of the advertisement in September 1999 (under which the respondent-Rajesh Babbar had applied for appointment), LPA No.477 of 2009 12 and as such, no benefit of his disability, namely, impaired vision, could have been sought by the respondent-Rajesh Babbar. For the instant reasons also it is the vehement contention of the learned counsel for the appellant that case of Rajesh Babbar is distinguishable from the case of Shikha Malhotra (supra). Fourthly, it was contended that the respondent-Rajesh Babbar was seeking appointment against the post of Probationary Officer with the appellant-bank against one of the vacancies advertised by it in September 1999. The aforesaid advertisement expressly incorporated, that appointment of selected candidates would be subject to their being declared medically fit by medical board nominated by the appellant-bank. It is submitted that since the medical board had declared the respondent-Rajesh Babbar unsuitable for appointment against the post of Probationary Officer it was not open to the appellant bank to issue an offer of appointment to him. We propose to deal with all the aforesaid four submissions advanced at the hands of the learned counsel for the appellant-bank collectively. It seems that the appellant-bank has not been able to fully appreciate the determination rendered by the Division Bench of this Court which decided Shikha Malhotra's case (supra). It is wholly fallacious for the appellant-bank to raise the issue of disability. First and foremost, neither Shikha Malhotra nor the respondent-Rajesh Babbar, claimed appointment against the post of Probationary Officer on account of seats reserved for disabled candidates. The claim raised by Shikha Malhotra, as also by respondent-Rajesh Babbar is that the impairment of their vision, does not constitute a handicap in discharging the duties of the post of Probationary LPA No.477 of 2009 13 Officer, and as such, they cannot be denied appointment in spite of their selection, merely for the reasons that vision in one of their eyes is impaired. In other words, their claim is that they are medically fit to discharge the duties of the post of Probationary Officer. In so far as Shikha Malhotra's case is concerned, her vision from the left eye was absolutely normal i.e.,6x6, whereas, she had no vision whatsoever from her right eye, inasmuch as, Shikha Malhotra had an artificial right eye. In so far as the respondent-Rajesh Babbar is concerned, his vision from the right eye was absolutely normal i.e. 6x6, whereas, his vision from the left eye was impaired, inasmuch as, his left eye was damaged and its vision had accordingly been reduced to 1x60. Since a Division Bench of this Court in Shikha Malhotra's case (supra) had clearly opined that blindness of Shikha Malhotra from one eye did not render her medically unsuitable for the post of Probationary Officer, it is difficult to comprehend how the respondent- Rajesh Babbar who was marginally better than Shikha Malhotra in so far as his vision is concerned, can be treated as medically unsuitable for discharging the duties of the post of Probationary Officer. The conclusion drawn by this Court to the effect that Shikha Malhotra was medically suitable for appointment against the post of Probationary Officer, has been upheld by the Apex Court with the dismissal of the petition for Special Leave to Appeal bearing No. SLP(C) 6015 of 2008 vide order dated 18.7.2008. Thus viewed, we are satisfied that the respondent-Rajesh Babbar must be treated as medically suitable for appointment as Probationary Officer with the appellant-bank on the basis of the fact that vision from his right eye is absolutely normal i.e.,6x6. The pleas raised on behalf of the appellant-bank on the issue of disability have to be summarily rejected, as LPA No.477 of 2009 14 the respondent-Rajesh Babbar did not claim appointment to the post of Probationary Officer, out of seats reserved for disabled candidates. For the aforesaid reasons, we hereby reject all the aforesaid four contentions advanced by the learned counsel for the appellant. The next contention advanced by the learned counsel for the appellant-bank was, that in the advertisement issued in September 1999, no reservation was provided for candidates who suffered from visual disability. As such, it was submitted that candidates with deficiency in vision would legitimately not have responded to the advertisement issued by the appellant-bank in 1999. Consequently, the action of the appellant-bank in declining appointment to the respondent-Rajesh Babbar, must be treated as legitimate, inasmuch as, there has been no discrimination between the respondent and persons similarly situated as him. It is submitted that persons similarly situated as the respondent-Rajesh Babbar had not applied for the post under the belief that they were not eligible. The instant submission advanced by the learned counsel for the appellant-bank is purely conjectural in nature. It is not the case of the appellant that some candidates who were similarly situated as the respondent-Rajesh Babbar had not applied, no specific instances in this behalf have been brought out in the pleadings filed by the appellant-bank. The respondent-Rajesh Babbar considered himself as eligible for appointment against the post of Probationary Officer, he accordingly responded to the advertisement. Those similarly situated as him, who did not respond to the advertisement, must be deemed to have done so at their own peril. After being selected the respondent-Rajesh Babbar pressed his claim for appointment as Probationary Officer. In his claim he has succeeded to establish, that the LPA No.477 of 2009 15 ground on which he was denied appointment was wholly unjustified. As such, we find no merit in the instant contention of the learned counsel for the appellant. The last i.e.,the sixth contention advanced by the learned counsel for the appellant was, that all consequential benefits granted to the respondent-Rajesh Babbar in the impugned judgment are unjustified. It is the vehement