1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.06.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN W.P.(MD)No.4174 of 2011 and M.P.(MD)No.1 of 2011 V.Kandasamy : Petitioner Vs. The General Manager, Tamil Nadu State Transport Corporation (Madurai) Limited, Tirunelveli Region, Tirunelveli. : Respondent Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the respondent herein to appoint the petitioner herein as Conductor in the respondent Transport Corporation. For Petitioner : Mr.M.Elanchezhian For Respondent : Mr.S.Baskaran ******** ORDER ****** The petitioner has come up with the present Writ Petition for a Mandamus, directing the respondent to appoint him as Conductor in the respondent Transport Corporation. 2. The short matrix of the matter is set out hereunder: The petitioner has applied for the post of Conductor in the respondent Corporation. Though he has possessed all qualifications, he was not given employment. Hence, the petitioner has come up with the present Writ Petition for the reliefs stated earlier. 3. On notice, the learned counsel appearing for the respondent Transport Corporation reports that the petitioner was not selected, since he is suffering from 'deformity shortening of right lower limb'. https://hcservices.ecourts.gov.in/hcservices/ 2 4. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent Corporation. 5. The only reason that has been stated on behalf of the respondent is that the petitioner was not selected due to 'deformity shortening of right lower limb'. To this, the learned counsel appearing for the petitioner has drawn my attention to a judgment of a Division Bench made in Writ Appeal (MD) No.317 of 2008, dated 22.07.2008. In similar circumstances, the Division Bench has held that such infirmity cannot be a ground to deny an employment to the appellant thereon for the post of Conductor. The infirmities that have been mentioned in the rules to deny an employment are, (i) Defective vision (ii) Defective hearing (iii) Night Blindness and colour blindness (iv) Bow legs, knock knees or flat foot 6. Admittedly, the petitioner is not suffering from anyone of the infirmities. It is not in dispute that the petitioner is possessing age requirement and all other requirements. It would be more appropriate to re-produce paragraph Nos.4 to 13 of the judgment made in W.A.(MD)No.317 of 2008, which are extracted hereunder: "4. The stand of the learned counsel for the respondent was noted by the learned Judge in the order dated 14.12.2007. There is no dispute that the petitioner satisfied all the requirements. He also has required educational qualification and required height and weight. There is no dispute that the petitioner's eye sight is also adequate. There is a requirement under the relevant rules that the petitioner must be free from physical deformity. The following deformities are mentioned in the rules set out. (i) Defective vision (ii) Defective hearing (iii) Night Blindness and colour blindness (iv) Bow legs, knock knees or flat foot The petitioner is not suffering from any one of them. The other requirement of experience in driving and age requirement are all satisfied by the petitioner. The only so-called deficiency which was found in the petitioner is that the petitioner is alleged to have a "deformity in the left hip due to non-union neck or femur left" 5. On this ground, the respondent refused to appoint the petitioner. The learned Judge has affirmed the aforesaid stand of the respondent and dismissed the Writ Petition. https://hcservices.ecourts.gov.in/hcservices/ 3 6. We are of the view that, in this matter, the manner in which discretion has been exercised by the learned Judge does not have our approval. 7. It is also not in dispute that the petitioner has submitted a Medical Certificate issued by the Orthopaedic Surgeon, Government Medical College, Thoothukudi to the effect that the aforesaid alleged deformity does not prevent the petitioner from walking around and working as a Conductor. 8. It is common knowledge that as a result of the deformity, which is alleged against the petitioner, his gait, if at all, may become a little inartistic. The petitioner is not appointed as a dance trainer but only as a Conductor in a bus and he satisfies all other requirements. 9. It cannot be disputed that in the present day grim situation of unemployment, a person's opportunity to be employed has been equated by the Apex Court as his right to life under Article 21 of the Constitution of India. So, by denying employment to the petitioner, virtually, his fundamental right to life is sought to be taken away solely on the aforesaid technical consideration. 10. The Apex Court has repeatedly emphasised that when a person is denied his fundamental rights, such denial has to be based on a procedure which is just, reasonable and fair. There is no fixed standard of fairness. Fairness has to be judged in the facts and circumstances of each case and in judging the fairness of a procedure, the Court must have due consideration of the entire facts and circumstances of the case, including the societal condition in which the parties are placed. The case of a person who is trying to eke out his living by accepting the job of a bus Conductor must be judged with a standard of a fairness which is obviously a little different from the cases of business barons or those of corporate magnets. In the cases of persons who are lowly placed the Courts have a duty to stretch the law as far as possible, without violating it, to give relief to those persons. 11. Going by the aforesaid consideration, this Court finds that the decision of the respondent in the instant case in refusing the employment to the petitioner does not meet the standards of fairness of any person of ordinary prudence. Unfortunately, the learned Judge did not approach the issues involved in this case from this angle. 12. It is left to this Court to interpret and apply the rule in the light of Human Rights https://hcservices.ecourts.gov.in/hcservices/ 4 jurisprudence incorporated by the Apex Court in our laws and as a result of which the right to life has received a very liberal interpretation. So, we are constrained to take a different view from the one which has been taken by the learned Judge. 13. In these facts and circumstances of the case, we direct the respondent to give appointment to the petitioner/appellant to the post of Conductor since the candidature of the petitioner is free from any other defect except the one pointed out in the order under the appeal. Such appointment should be offered to the petitioner/appellant within a period four weeks from this date." 7. Considering the above facts and circumstances of the case and also considering the judgment referred to above, I am of the considered view that the respondent is bound to provide employment to the petitioner as Conductor. Accordingly, the respondent is directed to provide employment to the petitioner as Conductor and the said exercise has to be carried out, within a period of eight weeks from the date of receipt of a copy of this order. 8. The Writ Petition stands ordered accordingly. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar(P&A) /True Copy/ Sub-Assistant Registrar To The General Manager, Tamil Nadu State Transport Corporation (Madurai) Limited, Tirunelveli Region, Tirunelveli +One cC to Mr.S.Baskaran, Advocate, SR.No.19402 SML rl/3c – 1.7.2011 Order made in W.P.(MD)No.4174 of 2011 Dated: 21.06.2011 https://hcservices.ecourts.gov.in/hcservices/