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2015 DIGILAW 71 (JK)

Rajesh Kumar v. Union of India

2015-03-04

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This Letters Patent Appeal is filed challenging the order of the learned Single Judge made in S.W.P. No. 1363/2013 dated 03.12.2013 wherein the learned Single Judge dismissed the writ petition filed by the appellant praying for a writ of mandamus directing the respondents to select/recruit and enroll the appellant as Constable (General Duty) in any one of ITBPF, BSF, CISF, CRPF, SSB and Rifleman (GD) in Assam Rifles with effect from 31st September, 2011 with all consequential benefits. 2. The case of the appellant before the learned Single Judge was that he is a permanent resident of village Tridwal Tehsil and District Rajouri of Jammu and Kashmir State. He applied for recruitment in pursuance to the notification issued by respondent No. 2, inviting applications in all States of India totaling 39574 posts for male candidates through Employment News dated 3-9 December, 2011, as Constable GD. The eligible candidates were to be recruited on the basis of competing in physical standard test, physical efficiency test, written examination and finally the medical examination. The appellant applied in un-reserved category and he was called upon to undergo the physical standard test and physical examination test at CRPF Camp, Bantalab, Jammu during February/March, 2012. The appellant was examined by the Recruiting Medical Officer of respondent No. 3 and he was found to be fit. The height and chest measurement of the appellant was taken which was found to be of the prescribed physical standard. The appellant was made to run 5 kilometers which he completed within 24 minutes. The appellant was thereafter subjected to Biometric test and at that time also he was thoroughly examined by the officers of the Recruiting Commission deployed at CRPF Camp Bantalab, Jammu. After satisfying the physical standard test, respondent No. 3 called upon the appellant to undergo the physical efficiency test. The appellant cleared the high jump and long jump and thereafter he was called to run one mile within 6.30 minutes besides undertaking high jump and long jump. After satisfying the physical standard test, respondent No. 3 called upon the appellant to undergo the physical efficiency test. The appellant cleared the high jump and long jump and thereafter he was called to run one mile within 6.30 minutes besides undertaking high jump and long jump. According to the appellant he cleared the physical efficiency test to the utmost satisfaction of the respondents and thereafter he was called upon to appear in the written examination on 22.04.2012 at Dogra Higher Secondary School, Shastri Nagar, Jammu between 10 a.m. to 12 noon under Ticket No. 1010109 and Roll No. 1004518819 and in the written examination also he was declared successful. Thereafter the appellant was called upon to appear in the medical examination against State wise vacancies in which the appellant figured at Record No. 2160 and 5377. He was ordered to appear for the medical examination at Medical Centre (008-005) F.T.R., HQ BSF, Jammu, P.O. BSF Paloura Camp, Jammu by respondent No. 3 through his letter dated 07.07.2012 and the Medical Board diagnosed that the appellant is suffering from poor distant vision ( rt. Eye 6/9) and he was also diagnosed to be suffering from Knock-knee disability. The report was issued on 23.07.2012. The appellant filed an appeal before respondent Nos. 2 and 3 based on which he was directed to appear before a Review Medical Board at C/H Jallandhar (Punjab) which was conducted on 28.05.2013. The Review Medical Board found that the appellant is not suffering from inferior eye vision of right eye, however, the disability of Knock-knee was reiterated. 3. According to the appellant, in order to remove the suspicion of suffering from disability of Knock-knee, he was assessed medically by Government Hospital at Kathua on 30.07.2012 and after assessment it was certified that appellant was not suffering from any Knock-knee disability. As the appellant was not selected due to the said disability preferred the writ petition which was dismissed by the learned Single Judge against which this appeal is filed. 4. Mr. As the appellant was not selected due to the said disability preferred the writ petition which was dismissed by the learned Single Judge against which this appeal is filed. 4. Mr. N. Dubey, learned counsel appearing for the appellant contends that the appellant having been found fit in physical efficiency test and having come successful in the high jump, long jump and the running competition twice, the finding given by the Medical Board regarding his Knock-knee disability is erroneous and even the Government Hospital at Kathua assessed as to whether the appellant is suffering with any disability particularly Knock-knee and the said aspect assessed and certified on 30.07.2012 that the appellant was not suffering from any Knock-knee disability and, therefore, denial of selection and appointment to the appellant on the said ground of Knock-knee disability is illegal, arbitrary and the learned Single Judge dismissed the writ petition merely relying on the averments made in the counter affidavit filed by the respondents herein, the appellant is entitled to succeed. 5. Mr. Ravinder Kumar Gupta, learned counsel appearing for the respondents, on the other hand, submitted that the appellant's medical fitness was assessed by the Medical Board initially which found two disabilities, namely, poor distant vision (Rt. Eye 6/9) and Knock-knee and the request having been made by the appellant to re-assess his medical fitness, the Review Medical Board again assessed the medical fitness of the appellant and it was certified that the appellant is having the disability of Knock-knee and, therefore, the appellant was not found medically fit for selection and appointment as Constable in BSF and the same was rightly appreciated by the learned Single Judge and the order needs no interference. 6. We have considered the rival submissions, perused the averments contained in the counter affidavit and other documents relied on. 7. The applications were called through Employment News dated 3-9 December, 2011 for the posts of Constable (GD), fixing the last date as 04.01.2012. In the advertisement notice itself the mode of selection, namely, scheme of examination, is mentioned. In clause 8(I) the physical standards test, 8(II), physical efficiency test, 8(III) written examination and 8(IV) medical examination are prescribed. The appellant has come out successfully in the physical standards test, physical efficiency test, written examination and also appeared for medical examination but due to the disability of Knock-knee he was found unfit by the selection Board. In clause 8(I) the physical standards test, 8(II), physical efficiency test, 8(III) written examination and 8(IV) medical examination are prescribed. The appellant has come out successfully in the physical standards test, physical efficiency test, written examination and also appeared for medical examination but due to the disability of Knock-knee he was found unfit by the selection Board. It is stated in Clause 8(IV) that the selected candidates will be medically examined to answer their physical and medical fitness as prescribed in the eligibility conditions. "Temporary Unfitness" will not be allowed. However, candidates declared unfit may file an appeal/representation within 15 days of rejection by the medical Board. However, such candidates, if found fit by appeal panel in due course, will only be recruited against the wastage. Clause 8(IV)(iii) fixes the medical standards, i.e. (a) Eye sight, the minimum distant vision should be 6/6 & 6/9 of 2 eyes without correction i.e. without wearing of glasses. The candidate should possess high COLOUR VISION; (b) the candidates must not have knock knee, flat foot, varicose vain or squint in eyes, bow legs, inability to close the left eye, inability to flex the fingers properly and any other obvious deformities. They must be in good mental and bodily health and free from any physical defect which is likely to interfere with the efficient performance of the duties. 8. On perusal of the above medical standards prescribed, it is evident that the candidates must not have Knock-knee. Here in this case the Medical Board appointed by the selection Board assessed the appellant which found on 23.07.2012 that the appellant is having the disability of Knock-knee and also found poor distant vision (Rt. Eye 6/9). The appellant being not satisfied with the said Medical Board report in terms of the conditions contained in the advertisement notice, appealed before the authority concerned and after considering the said appeal/representation the review was ordered by the Review Medical Board consisting of six Medical officers. The said medical Board, after assessment, gave a finding that the appellant is having the disability of Knock-knee and certified that the appellant is medically unfit on account of Knock-knee. The said assessment was made by the Review Medical Board on 28.05.2013. The appellant also signed the said report after he received a copy of the said report. 9. The said medical Board, after assessment, gave a finding that the appellant is having the disability of Knock-knee and certified that the appellant is medically unfit on account of Knock-knee. The said assessment was made by the Review Medical Board on 28.05.2013. The appellant also signed the said report after he received a copy of the said report. 9. It is the contention of the appellant that he obtained a medical certificate from another Medical Officer on 30.07.2012, certifying that the appellant is medically fit for the post of Constable (GD). The said medical certificate will not give any support to the appellant in respect of his eligibility for selection/appointment in terms of the notification issued as the medical examination to assess the candidate's physical and medical fitness must be by the Medical Board constituted by the selection authority and no other person. The said Medical Board found that the appellant is unfit. The grievance of the appellant to re-assess his medical fitness was also considered and the Review Medical Board also found that he is not eligible for selection due to disability of Knock-knee which is one of the disqualifications stated in the advertisement notice. It is very clearly stated in the advertisement notice itself that a candidate must not have Knock-knee. The appellant having applied, participated in the selection process and having been found by the Medical Board that he is having the disability of Knock-knee, the appellant is not entitled to turn around and say that inspite of the disability of Knock-knee as found by the Medical Board, he is entitled to get selection. 10. A similar issue was considered by a Division Bench of Delhi High Court in WP (C) No. 8940/2011 (Prem Prakash v. Union of India and another) decided on 20.01.2012, wherein also the Medical Board found that the petitioner therein was having the disability of Knock-knee. In the said case also the petitioner therein obtained a medical certificate from the Medical Officer, General Hospital Rewari, stating that petitioner was medically fit for selection by stating a bald statement without any reason. In the said case also the medical fitness was re-assessed by the Review Medical Board and the said Board also found that the petitioner therein was having the disability of Knock-knee. The Division Bench dismissed the writ petition. In the said case also the medical fitness was re-assessed by the Review Medical Board and the said Board also found that the petitioner therein was having the disability of Knock-knee. The Division Bench dismissed the writ petition. Similar view was taken by a Division Bench of this Court (of which one of us-D.S. Thakur-J as a member) in LPASW No. D-9/2014 (Shoket Hussain v. Union of India and ors, decided on 12.02.2014). 11. Here in this case also the appellant was assessed by a Medical Board, re-assessed by the Review Medical Board and was found unfit by the duly constituted Medical Board. The appellant has not alleged any mala fide against the Doctors of the Medical Boards. It is a well settled proposition of law that Court can go into the decision making process and the decision made is arbitrary or not. If the action of the public authority is not arbitrary or unreasonable or amounting to mala fide or improper power, the Courts are not expected to interfere with the said decision. The team of Doctors, who are experts in the assessment of the medical fitness of the candidates, having assessed the medical fitness of the appellant for the post of Constable (GD), the said decision cannot be held as unreasonable or arbitrary. It is also well settled proposition of law that Court has no expertise to review the decision made by the experts. The decision not to select a candidate with Knock-knee is a policy decision taken by the authorities and the said decision was taken, bearing in mind the nature of the duties to be performed by a B.S.F. Constable (GD) cannot be treated as arbitrary. Under our Constitution the executive has been accorded with primary responsibility for formulation of government policy and the Court does not interfere unless the policy is unconstitutional, arbitrary or irrational or contrary to the statutory provisions. In the decision reported in : AIR 2012 Supreme Court, 1803 (Bedanga Talukdar v. Saifudullah Khan and ors), it is held that selection procedure stipulated in the advertisement notice must be scrupulously followed and the Courts have no power to relax the conditions with regard to submission of certificate. In the decision reported in : AIR 2012 Supreme Court, 1803 (Bedanga Talukdar v. Saifudullah Khan and ors), it is held that selection procedure stipulated in the advertisement notice must be scrupulously followed and the Courts have no power to relax the conditions with regard to submission of certificate. If a particular scheme is mentioned in an advertisement, the same has to be scrupulously followed and there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically mentioned in the advertisement. Relaxation of any condition mentioned in the advertisement without due publication would be contrary to the mandate of equality enshrined in Article 14 and 16 of the Constitution of India. In the said case the High Court directed that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed. The said direction was found to be contrary to the advertisement and selection norms and, therefore, Hon'ble the Supreme Court set aside the said direction issued by the High Court. 12. The learned Single Judge rightly dismissed the writ petition filed by the appellant and we are unable to find any reason to interfere with the said order and the appeal is dismissed. No costs.