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Gauhati High Court · body

2008 DIGILAW 239 (GAU)

Baikuntha Rajbongshi v. Union of India and Ors.

2008-03-25

RANJAN GOGOI

body2008
1. Heard Mr. R. Mazumdar, learned counsel for the petitioner and Mr. D.C. Chakraborty, learned Central Govt. Counsel, appearing on behalf of respondents. 2. As agreed to by the learned counsel for both sides and having regard to the subject-matter involved this writ petition is being disposed of at the admission stage. 3. Pursuant to an advertisement issued in January 2007 inviting applications for filling up vacant posts of General Duty Constables in the CRPF the petitioner submitted his application and participated in the selection process. The petitioner cleared the selections. However, in the mandatory medical examination which was carried out on 30.5.2007 the petitioner was found to be unfit on account of the following medical findings : "(1) B/L Inf. Turbinate Hypertrophy. (2) B/L Flat Foot." 4. Under the norms for medical examination contained in the advertisement issued a candidate declared unfit on medical ground is required to be informed of the reasons for the rejection of his case. A candidate, if not satisfied with the findings of the medical officer/board, is vested with the right to file an appeal for re-medical examination with proof of his fitness in the form of a medical certificate as prescribed by Annexure-IV to the advertisement. Annexure-IV is the form of the certificate to be issued by another doctor certifying the medical condition of the candidate with full knowledge that he has been earlier found to be medically unfit to join the Force. Once an application for re-medical examination along with the certificate in Annexure-IV is submitted to the appellate authority, as prescribed, the said authority is required to take a decision as to whether the candidate concerned should be subjected to a re-medical examination. 5. In the present case the petitioner, on being informed that he has been found to be unfit in the medical examination held on 30.5.2007, submitted an application for re-medical examination which was accompanied by the requisite certificates (two in number) in Annexure-IV, as prescribed. The first certificate dated 7.6.2007 was issued by the Registrar of Orthopaedics, Guwahati Medical College and counter­signed by the Associate Professor as well as the Head of the Department of Orthopaedics. By the said certificate it was certified that the petitioner is not suffering from any flat foot deformity. The first certificate dated 7.6.2007 was issued by the Registrar of Orthopaedics, Guwahati Medical College and counter­signed by the Associate Professor as well as the Head of the Department of Orthopaedics. By the said certificate it was certified that the petitioner is not suffering from any flat foot deformity. The second certificate, also dated 7.6.2007, was issued by the Resident Surgeon, Department of ENT, Gauhati Medical College and is countersigned by the Associate Professor of the department. The said certificate is to the effect that the petitioner, on examination, has been found to be clinically fit from the ENT point of view. The aforesaid certificate goes on to recite that the same has been issued in full knowledge that the petitioner was earlier declared to be medically unfit due to Bilateral inferior Turbinate Hypertrophy. 6. Thereafter, a re-medical examination of the petitioner was conducted by the authorities of the Force on 4.10.2007 wherein the adverse medical condition earlier noticed i.e. flat foot and Bilateral inferior Turbinate Hypertrophy were, once again, recorded and the petitioner was declared to be medically unfit. Aggrieved, this writ petition has been filed. 7. Learned counsel for the petitioner has placed reliance on an earlier order of this court dated 4.5.2006 passed in WP(C) No. 1003 of 2006 to contend that in view of the contrary medical opinion expressed by the specialist doctors of the Medical College who had examined the petitioner the authorities of the Force should not be allowed to continue to entertain the opinion that the petitioner is medically unfit to join the Force. Learned counsel for the petitioner has further contended, by relying on the aforesaid order of this court dated 4.5.2006, that the opinion of a civilian doctor with regard to the medical condition of an intending recruit is not foreign to the provisions of the CRPF Rules, 1955 and in appropriate cases, like the present one, the opinion of the civilian doctors must carry adequate weight. 8. The order dated 4.5.2006 passed in WP(C) No. 1003 of 2006 has been duly read and considered by the court. 8. The order dated 4.5.2006 passed in WP(C) No. 1003 of 2006 has been duly read and considered by the court. By the said order, this court, after considering the provisions contained in rule 12 of the CRPF Rules, 1955, had taken the view that in appropriate cases the opinion of the civilian doctor with regard to the medical condition of a candidate intending to join the Force must receive due weightage and primacy and such opinion should be allowed to have its due role in resolving the conflicting/contrary opinions expressed by the doctor of the Force. This court, however, did not lay down what would be the circumstances and situations where the opinion of the civilian doctors should be allowed to have its due effect. On the contrary, the court, instead of attempting to exhaustively lay down such possible situations, had thought it appropriate to hold that much would depend on the facts and circumstances of a given case. 9. In the present case the defects noted in the preliminary medical examination dated 30.5.2007 as well in the re-medical examination dated 4.10.2007 pertain to the field of orthopedics and ENT. The doctor who carried out the preliminary medical examination of the petitioner on 30.5.2007 is an Orthopaedic Surgeon but not an ENT surgeon. The two medical officers who carried out the re-medical examination of the petitioner on 4.10.2007 were neither Orthopedic nor ENT Surgeons. In such a situation, the opinion rendered by the Resident Surgeon and the Registrar of the Department of ENT and Orthopedics of the Gauhati Medical College will be of some significance. The aforesaid certificates issued by the Resident Surgeon and the Registrar have been countersigned by the Associate Professor of the Department and even by the Head of the Department of Orthopaedics. These are facts that cannot be overlooked by the court. Whether the opinion of the civilian doctors or the view expressed by the medical officers of the Force is the correct view is not for the court to decide even assuming that the court should proceed to decide such a question. These are facts that cannot be overlooked by the court. Whether the opinion of the civilian doctors or the view expressed by the medical officers of the Force is the correct view is not for the court to decide even assuming that the court should proceed to decide such a question. What is being sought to be emphasized is that in view of the opinion expressed by the civilian doctors there is a fair amount of doubt as regards the view expressed by the doctors of the CRPF which doubts will have to be resolved and the matter will have to be set at rest. The only way in which such a resolution would be possible, in the considered view of the court, is to have a further medical examination of the petitioner by a team consisting of an Orthopaedic Surgeon and an ENT Surgeon. As the recruitment involved is to the CRPF, the court is of the view that it should be left to the discretion of the CRPF authorities as to whether the Orthopaedic and ENT surgeons who will comprise the medical team to examine the petitioner should be from the Medical College or from a civil hospital or from the specialist doctors of the Force. The medical team will now be constituted and the medical examination of the petitioner in terms of the present directions will be carried out within a period of 30 days from the date of receipt of this order or a certified copy thereof. Thereafter, depending on the outcome/result of the said medical examination the CRPF authorities will take further action in the matter of recruitment of the petitioner as may be warranted in law. 10. Writ petition shall stand disposed of in terms of the above directions. 11. Copy of this order be furnished to Sri D.C. Chakraborty, learned Central Govt. Counsel as well as Sri R. Mazumdar, learned counsel appearing for the petitioner.