Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Appointment Of Constables; Invalidated On The Ground Of Medical; Without Any Reasonable Basis Or Justification, The Recruitment......be Impermissible.
JUDGEMENT TITLE : State Of U.P. And 2 Ors. Vs. Rahul On 02/03/2016 By Allahabad High Court
CASE NO : SPECIAL APPEAL DEFECTIVE NO. 70 OF 2016
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Yashwant Varma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court AFR

Case :- SPECIAL APPEAL DEFECTIVE No. - 70 Of 2016
Appellant :- State Of U.P. And 2 Ors.
Respondent :- Rahul
Counsel For Appellant :- Piyush Shukla
Counsel For Respondent :- Vinod Kumar Singh

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.

(Per : Dr D Y Chandrachud, CJ)

This Special Appeal Has Arisen From A Judgment And Order Of The Learned Single Judge Dated 15 September 2015. The Respondent Applied In Pursuance Of An Advertisement That Was Issued On 14 May 2013 By The Uttar Pradesh Police Recruitment And Promotion Board Setting In Motion A Selection Process For Appointment Of Constables In The Civil Police And PAC Among Other Posts. The Selection Process Envisaged Four Stages Namely : (i) Physical Standard Test; (ii) Physical Efficiency Test; (iii) Written Test; And (iv) A Medical Test. The Respondent Was Invalidated On The Ground Of Medical Unfitness In The Medical Test Which Resulted In The Filing Of Writ Proceedings. In The Writ Petition, The Respondent Averred That He Had Been Wrongly Declared Failed By The Medical Board Whereas He Had Got Himself Examined By A Doctor Of VMMC And Safdarjang Hospital Where He Was Found To Be Fit.
The Learned Single Judge By An Interim Order Dated 4 August 2015 Directed The Medical Examination Of The Respondent Upon Appearing Before The Principal Of The Motilal Nehru Medical College Who Was To Constitute A Three-Member Team For Submitting A Report. The Report Was Received On 10 September 2015. Based On The Report Of The Expert Committee Appointed By The Court, The Learned Single Judge Allowed The Writ Petition On 15 September 2015 By Directing That The Respondent Should Be Treated As Medically Fit And A Consequential Order Of Appointment Should Be Issued Within A Period Of Six Weeks.
The State Is In Appeal.
The Submission Which Has Been Urged On Behalf Of The State Is That There Was No Warrant Or Justification For The Learned Single Judge To Have Issued An Interim Order For Medical Examination Of The Respondent By A Team Of Doctors To Be Constituted In The Motilal Nehru Medical College, Allahabad. In This Regard, Reliance Was Placed On The Provisions Contained In Rule 13 Of The Uttar Pradesh (Civil Police) Constable And Head Constable Service Rules, 20081 Which Provides For The Appearance Before A Medical Board By The Candidate Before Approval For Appointment. In The Present Case, It Was Submitted That The Respondent Appeared Both Before The Medical Board Constituted By The Recruitment Board And When He Was Not Satisfied With The Outcome Of The Medical Test Filed An Appeal Before The Appellate Board. The Review Medical Examination Also Resulted In A Finding Of Unfitness. Hence, It Was Submitted That There Was No Warrant Or Justification For The Learned Single Judge To Direct A Medical Examination By A Separate Medical Board Outside The Recruitment Process Unless In An Exceptional Case The Court Were To Come To The Conclusion That The Board Which Had Been Appointed By The Competent Authorities Had Rendered A Finding Which Was Perverse. Finally, It Was Urged That In The Present Case, When The Respondent Submitted A Representation On 8 April 2015, No Allegation Of A Demand Of Illegal Gratification Was Made And It Was Only In The Writ Petition That A Ground Was Sought To Be Inserted By Making An Allegation Which Had Not Been Levelled At The First Available Opportunity.
On The Other Hand, On Behalf Of The Respondent, It Was Initially Urged By Counsel That, As Matter Of Fact, No Medical Examination Was Carried Out Of The Respondent And The Medical Report Which Has Been Produced On The Record Is A 'fake' Medical Report. Hence, It Was Urged That There Was Ample Justification For The Learned Single Judge To Direct That A Fresh Medical Team Be Constituted By The Principal Of The Motilal Nehru Medical College. The Respondent Had Been Duly Examined And Had Been Found To Fulfill The Medical Parameters And Not To Be Suffering From A Flat Foot. In These Circumstances, It Was Submitted That The Order Of The Learned Single Judge Holding That The Respondent Is Medically Fit Does Not Call For Interference In The Special Appeal
Now, At The Outset, It Would Be Necessary To Advert To Rule 13 Of The Rules. Rules 13 Reads As Follows:
"Physical Fitness
13. No Candidate Shall Be Appointed To A Post In The Service Unless He Is In Good Mental And Bodily Health And Free From Any Physical Defect Likely To Interfere With The Efficient Performance Of His Duties. Before A Candidate Is Finally Approved For Appointment, He Shall Be Required To Pass An Examination By Medical Board.
NOTE:- The Medical Board Shall Examine The Candidate For Any Physical Standards Prescribed For Height, Chest And Weight Measurement As The Case May Be And Deficiencies Such As Knock Knee, Bow-legs Flat Feet, Varicose Veins, Distant And Near Vision, Colour Blindness, Hearing Test Comprising Of Rinne' Test, Webber's Test And Tests For Vertigo Speech Defects Etc As Any Be Notified From Time To Time By The State Government."

These Rules Have Been Framed In Exercise Of Powers Conferred By Section 46 (2) And Section 2 Of The Police Act, 1861 And Have Statutory Force And Effect. The Rules Specifically Provide For The Examination Of A Candidate By A Medical Board Before Being Finally Approved For Appointment And Specify The Parameters Which Are To Be Fulfilled For The Purposes Of A Medical Examination. The Record Before The Court Indicates That The District Medical Board Found The Respondent To Be Medically Unfit On 1 April 2015 On The Ground That He Suffered From A Flat Foot. The Respondent Was Aggrieved By The Rejection Of His Candidature. Hence, He Filed An Appeal On 1 April 2015 Specifically Referring To The Ground Of Medical Unfitness Found By The District Board And Sought A Review Before The Divisional Medical Board. We Must Note From The Appeal Which Has Been Filed By The Respondent (and Which Forms A Part Of Annexure-5 To The Writ Petition) That The Contention Of The Respondent Before This Court In Special Appeal To The Effect That There Was No Medical Examination In The First Place Is Manifestly Misconceived. There Was A Medical Examination In Which The Respondent Was Found To Be Medically Unfit And It Is On That Basis The Respondent Sought A Review Medical Board On 1 April 2015. In The Review Medical Board Also The Respondent Was Found To Suffer From A Flat Foot And Was Found Unfit For The Said Reason. Against This Determination, The Respondent Filed A Representation On 8 April 2015. Significantly, The Complaint Which Was Filed Before The Director General Does Not Contain Any Reference To A Demand For Illegal Gratification. This Issue Was Not Raised At The First Available Opportunity And Was Raised Only In The Writ Petition. The Respondent Claimed That A Demand For Illegal Gratification Had Been Made From Him When He Appeared Before The Regional Medical Board At Kanpur On 4 April 2015. This Averment In Paragraph 14, As The Verification Of The Writ Petition Would Indicate, Is Made On The Basis Of A Perusal Of Records And Not On The Basis Of The Personal Knowledge Of The Respondent. This Coupled With The Fact That In The Representation Of The Respondent Dated 8 April 2015, He Made No Reference To Any Illegal Demand Of Gratification Would Be Sufficient To Hold That This Averment Is An Effort In The Writ Petition To Somehow Sustain A Ground Of Challenge.
This Court In Previous Decisions Has Emphasized The Need To Preserve The Sanctity Of The Recruitment Process And Of The Care And Circumspection Which Has To Be Exercised Before The Findings Of An Expert Medical Board Constituted By The Authorities Are Interfered With In Writ Proceedings. Undoubtedly, The Powers Of The Court Under Article 226 Of The Constitution Are Wide Enough To Issue Such A Direction In An Appropriate Case. However, Such Directions Cannot Be Issued Merely On The Basis Of A Request Made In That Behalf Before The Court.
In A Recent Judgment Of This Court In Union Of India Through Ministry Of Railways Vs. Parul Punia2, This Court Has Emphasized The Need For Caution When Candidates Seek To Question The Correctness Of The Findings Of A Medical Board Constituted Under The Recruitment Process Adopted By The Authorities Of The State, On The Basis Of A Report Obtained By The Candidates. The Division Bench Observed As Follows:
"...In A Number Of Such Cases, Candidates Who Have Been Invalidated On Medical Grounds Produce Expert Opinions Of Their Own To Cast Doubt On The Credibility Of The Official Medical Report Constituted By The Recruiting Body. In Such Cases, The Court May Not Have Any Means Of Verifying The Actual Identity Of The Person Who Was Examined In The Course Of The Medical Examination By The Doctor Whose Report Is Relied Upon By The Candidate. Hence, Even Though The Authority Whose Medical Report Was Produced By The Candidate May Be An Expert, The Basic Issue As To Whether The Identity Of The Candidate Who Was Examined, Matches The Identity Of The Person Who Has Applied For The Post Is A Serious Issue Which Cannot Be Ignored..."

Dealing With The Parameters Of The Writ Jurisdiction In Such Cases, The Division Bench Observed Thus:

"...Undoubtedly, In A Suitable Case, The Powers Of The Court Under Article 226 Are Wide Enough To Comprehend The Issuance Of Appropriate Directions But Such Powers Have To Be Wielded With Caution And Circumspection. Matters Relating To The Medical Evaluation Of Candidates In The Recruitment Process Involve Expert Determination. The Court Should Be Cautious In Supplanting The Process Adopted By The Recruiting Agency And Substituting It By A Court Mandated Medical Evaluation. In The Present Case The Proper Course Would Have Been To Permit An Evaluation Of The Medical Fitness Of The Respondent By A Review Medical Board Provided By The Appellants. Otherwise, The Recruitment Process Can Be Derailed If Such Requests Of Candidates Who Are Not Found To Be Medically Fit For Reassessment On The Basis Of Procedures Other Than Those Which Are Envisaged By The Recruiting Authority Are Allowed. This Would Ordinarily Be Impermissible."

In The Present Case, We Find Absolutely No Reasonable Basis For The Respondent To Have Invoked The Jurisdiction Under Article 226 For Constituting A Separate Medical Board Under The Authority Of The Principal Of Motilal Nehru Medical College, Allahabad. In The Interim Order Of The Learned Single Judge, There Was No Safeguard To The Effect That The Medical Examination Would Take Place In The Presence Of A Representative Of The State To At Least Ensure That The Issue Of Identity Did Not Arise. But That Apart, More Fundamentally, The Objection To The Entire Procedure Which Has Been Followed Is That Without Any Reasonable Basis Or Justification, The Recruitment Process And The Procedures Which Have Been Laid Down Have Been Supplanted Under A Judicial Direction. This, In Our View, Would Be Impermissible.
We May Also Note That In An Earlier Judgment Of A Division Bench Of This Court In State Of U.P. Vs. Deepak Kumar3 It Observed As Follows:

"Once Such Is The Factual Situation That There Is Self Contained Procedure, That Has Been Provided For, Being Declared Medically Fit And There Is A Provision Of Review Also In Case An Incumbent Is Declared Medically Unfit And Here On Two Occasions Respondent Petitioner Has Failed To Prove Himself To Be Medically Fit, Then Based On The Report Of A Private Medical Practitioner No Such Mandatory Directives Could Have Been Issued. That Is Totally Outside The Scope Of Scheme That Has Been Provided For, In View Of This, The Order Passed By The Learned Single Judge Cannot Be Subscribed By Us. Candidate Concerned, At No Point Of Time, Has Imputed Any Motive To Members Of Medical Board That They Have Wrongly For Extraneous Consideration Prepared Wrong Report."


We May Also Note That In The Report Of The Motilal Nehru Medical College, Allahabad Which Has Been Referred To In The Impugned Order Of The Learned Single Judge, It Has Been Found That "there Is Mild Collapse Of Medial Arch Leading To Grade-1 Flat Foot". However, On A Medical Examination, The Bio-mechanical Function Of Foot Was Found To Be Intact. The Report Advised That The Case 'can Be Considered Fit As Per The Medical Parameters Set By A Particular Service For Which The Candidate Opts For'. Thus Even The Report Of The Independent Board Did Not Support The Case Of The Respondent.
For The Reasons Which We Have Indicated, We Are Of The View That The Special Appeal Would Have To Be Allowed. The Special Appeal Is, Accordingly, Allowed. The Impugned Judgment Of The Learned Single Judge Dated 15 September 2015 Is Set Aside. The Writ Petition Filed By The Respondent Shall Stand Dismissed. A Copy Of This Order Be Placed On The Record Of The Writ Petition.
There Shall Be No Order As To Costs.

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