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2017 DIGILAW 718 (ALL)

Ajay Kumar Yadav v. Union of India Thru Secy.

2017-03-07

ASHOK KUMAR, V.K.SHUKLA

body2017
JUDGMENT Ajay Kumar Yadav is before this Court, assailing the validity of the order dated 6.2.2017 passed in Writ-A No. 5371 of 2017 (Ajay Kumar Yadav vs. Union of India and 7 others), wherein the learned Single Judge has proceeded to turn down the request that has been so made on behalf of the petitioner for reconsideration of candidature and re-medical examination of the petitioner based on subsequent report obtained from the Department of Radiology at Tej Bahadur Sapru Hospital, Allahabad, wherein petitioner has been informed that he is not suffering from the disease as diagnosed. The record in question reflects that the petitioner was sent to undergo medical examination and this fact is also reflected that on 7th June 2016 the petitioner has been declared medically unfit and then as is provided under the scheme of things provided for, an incumbent was entitled for review of the medical opinion and accordingly the petitioner proceeded to move review application and then the Review Medical Board re-examined the petitioner and affirmed the opinion that has been formed by the earlier Medical Board. The opinion of Review Medical Board is dated 14.9.2016. It appears that thereafter the petitioner got himself medically examined at Taj Bahadur Sapru Hospital, Allahabad on 20.12.2016 and it appears that this time the medical report proceeded to favour him and in view of this the petitioner has been before this Court for redressal of his grievance but the learned Single Judge bound by the judicial precedent has proceeded to refuse to entertain the request so made. Accordingly, the petitioner appellant is before us. Sri Alok Kumar Yadav, counsel for the petitioner contended before us that once the report of Tej Bahadur Sapru Hospital, Allahabad is credible one and the said report in question is based on various test that has been carried out and in such a situation and in this background a third opportunity should be provided to the petitioner appellant and he should be re-checked by the Medical Board in question. The claim in question has been resisted by Dr. The claim in question has been resisted by Dr. Santosh Kumar, Advocate by contending that under the scheme of things provided for, once an incumbent was dissatisfied with the opinion of Medical Board then he has a remedy of review before the Review Medical Board and in the present case the Review Medical Board had been approached and Board dittoed the report of earlier Medical Board, in such a situation and in this background if subsequently the report in question has been obtained, may be from the Government Hospital, the same cannot be made foundation and basis for altering or reviewing the earlier medical opinion that has been so obtained. We have proceeded to examine the arguments and counter arguments that has come forward and what we find is that under the scheme of things provided for, there is a requirement of undergoing medical test and here same has been so carried out and petitioner has been found to be medically unfit. The report of the Medical Board is dated 16.6.2016. The petitioner thereafter has proceeded to file review and the said matter has been placed before Review Medical Board and on 14.9.2016 the Review Medical Board has also proceeded to ditto the report dated 16.6.2016. There is no further provision of getting the medical examination again and again and in such a situation and in this background once finality has been attached to the said medical opinion then merely because from outside agency or may be State agency the petitioner has been in a position to get the medical report favouring him, the same cannot be used as a ground to review the report of the Medical Board or Review Medical Board and specially when no malice has been alleged. The view that has been taken by us stands backed by a Division Bench of this Court rendered in Special Appeal Defective No. 540 of 2015 (Arjun Singh vs. State of U.P. and others), wherein the Division Bench has held as follows : "The appellant, while moving the learned Single Judge in a writ petition under Article 226 of the Constitution, did not disclose that, as a matter of fact, a 're-medical test' had also been carried out. Having due regard to the fact that the recruitment is to the police force, the ground for rejection cannot be regarded as being extraneous to the nature of the employment or the norms of fitness required. The learned Single Judge has correctly held that it would not be open for the Court to substitute its own opinion for the opinion of the medical authorities or to hold that the requirement need not be fulfilled. The Court can only interfere where there has been a violation of a legal provision or the decision has been arbitrarily taken. Learned counsel appearing on behalf of the appellant has sought to place reliance upon a medical report dated 16 April 2015 of Dr. Shyama Prasad Mukherjee Civil Hospital, Lucknow. The medical report only states that no orthopaedic problem is seen and that the appellant has normal arch of both feet. This, in our opinion, cannot override the process which is prescribed by the competent authority for deciding medical fitness. We see no reason to interfere with the impugned judgment and order of the learned Single Judge. The special appeal is dismissed. There shall be no order as to costs." The Supreme Court while deciding the Civil Appeal nos.2366-2367 of 2011 (State of U.P. and others Vs Pankaj Kumar Vishnoi) along with other connected appeals vide its judgment and order dated 25.7.2013 has held that once the respondent appeared in the test and could not qualify the same, the High Court could not have asked the Department to give him an opportunity to hold another test to extend him the benefit of compassionate appointment on the post of Sub-Inspector. Para 21 of the said judgment reads as under: - "21. It is accepted position that the respondent appeared in the test and could not qualify. Once he did not qualify in the physical test, the High Court could not have asked the department to give him an opportunity to hold another test to extend him the benefit of compassionate appointment on the post of Sub-Inspector solely on the ground that there has been efflux of time. Once he did not qualify in the physical test, the High Court could not have asked the department to give him an opportunity to hold another test to extend him the benefit of compassionate appointment on the post of Sub-Inspector solely on the ground that there has been efflux of time. The respondent after being disqualified in the physical test could not have claimed as a matter of right and demand for an appointment in respect of a particular post and the High Court could not have granted further opportunity after the crisis was over." Consequently, following the same set of reasoning, no further opportunity is permissible and for giving quiet to the dispute in question, the present Special Appeal is dismissed.