Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 93 (JK)

Arvind Jasrotia v. Union of India

2018-02-21

ALI MOHAMMAD MAGREY, BADAR DURREZ AHMED

body2018
JUDGMENT : BADAR DURREZ AHMED, J. 1. The present appeal is directed against the judgment dated 29.11.2017, delivered by a learned Single Judge of this Court in SWP No. 2084/2016. 2. By virtue of the impugned judgment, the writ petition filed by the appellant herein was dismissed. The appellant had sought quashing of the review medical examination report dated 24.08.2016, whereby the appellant was declared ‘unfit’ on account of– “Tympanoplasty (Rt) ear inasmuch as the duration of 120 days after the operative procedure not completed as yet”. The other prayer that was made was that the respondents should grant the appointment to the appellant inasmuch as according to the appellant, he was medically fit. 3. The facts of the case are that the appellant had applied for the post of Constable (GD). He had been selected on merit, however, he failed the medical examination. When the medical examination was conducted on 13.05.2015, he was found ‘unfit’ due to the following reasons:- “– Ext Hemorrhoid at 7 O’clock position. – Rt. Tympanic Membrane perforation. – Decreased hearing Rt. Ear.” 4. Thereafter, the appellant filed an appeal against the medical unfitness for combined recruitment of Constable (GD) in Central Armed Police Forces (CAPFs) for the year 2015 in the prescribed form. As per the form, he got himself medically examined from a specialized medical officer of the concerned field. He had been examined by the Dr S.P. Singh, Department of E.N.T, S.M.G.S Hospital, Jammu and the Dr. J.P. Goswami, Senior Medical Officer, Government Sub-District Hospital (SDH), Hiranagar. Along with the said appeal, he filed the medical fitness certificates issued by the two doctors. In fact, the certificate has been given by both the doctors on a single sheet. As per Dr. S.P. Singh, in his opinion, there was an error of judgment in the medical examination report inasmuch as, according to him, the appellant did not suffer from any problem with the ear. He was of the view that the tympanic membrane of the right ear of the appellant was intact and his hearing was normal. This certificate had been issued on 27.05.2016. The second certificate deals with the problem of external hemorrhoids with which we are really not concerned. 5. He was of the view that the tympanic membrane of the right ear of the appellant was intact and his hearing was normal. This certificate had been issued on 27.05.2016. The second certificate deals with the problem of external hemorrhoids with which we are really not concerned. 5. It may be pertinent to note that based on this appeal that was filed by the appellant and the medical fitness certificates given by the two doctors, a review medical examination was directed to be conducted by the competent authority and the same was communicated to the appellant by a letter dated 05.08.2016, indicating that his review medical examination would be conducted at Frontier Hospital, BSF Paloura Camp, Jammu on 24.08.2016 (Wednesday) onwards. He was directed to report at the said hospital on the said date on 0800 hrs along with certain other documents. 6. Thereafter, the review medical examination was conducted and the review medical examination report was issued by the Review Medical Board. As per the said review medical examination report dated 24.08.2016 the appellant was found ‘unfit’. He was found ‘unfit’ on account of the fact that the procedure of Tympanoplasty on his right ear had been conducted but the duration of 120 days after the said operative procedure had not been completed “as yet”. 7. The contention of the learned counsel for the appellant is that when the first medical examination was done, it had been indicated that the right tympanic membrane of the appellant was perforated and that there was decreased hearing in the right ear. Subsequently, the appellant went through the operative procedure on 26.05.2016 and, as a result of which, the perforation in the right tympanic membrane was closed. According to the learned counsel the Review Medical Board should have been held after 120 days of the operative procedure and if on that date the appellant still had a perforated tympanic membrane of the right ear, then he could be declared ‘unfit’ and not otherwise. 8. The learned counsel for the respondents, however, submits that this would be contrary to the rules and the guidelines. The learned counsel for the respondents placed before us the “Guidelines for Recruitment Medical Examination in Central Armed Police Forces and Assam Rifles”, which was revised as on May, 2015 and issued by the Government of India, Ministry of Home Affairs (Police Division-II). The learned counsel for the respondents placed before us the “Guidelines for Recruitment Medical Examination in Central Armed Police Forces and Assam Rifles”, which was revised as on May, 2015 and issued by the Government of India, Ministry of Home Affairs (Police Division-II). As per the said guidelines, a detailed medical examination was also required to be done, inter alia, pertaining to the Tympanic Membrane. Guideline 3(iv) dealt specifically with the tympanic membrane and it was clearly specified that a candidate should be declared ’unfit’ insofar as the tympanic membrane is concerned for the following reasons:- “Existing perforation of the tympanic membrane or history of surgery to correct perforation during the preceding 120 days” 9. On a plain reading of this provision, it is evident that if on the date of medical examination there is an existing perforation of the tympanic membrane, the candidate ought to be declared to be medically ‘unfit’. He is also to be declared medically ‘unfit’ if on the date of the medical examination a corrective surgery had been done within the preceding 120 days. In the present case the corrective surgery had not been done prior to the said medical examination and therefore the second part of the said provision is not attracted. However, the medical examination report indicated an existing perforation of the tympanic membrane, which resulted in the appellant being declared ‘unfit’. 10. The learned counsel for the respondents submitted, and we agree with the submission, that the medical condition of the candidate has to be determined on the date of the first medical examination. On that date, it is evident from the above that there was an existing perforation of the tympanic membrane of the right ear of the appellant. Therefore, he was declared to be medically „unfit?, which was in consonance with the guidelines. 11. The appellant, however, had the perforation corrected through an operative procedure on 26.05.2016 and on the very next day, Dr. S.P. Singh from the Department of E.N.T., S.M.G.S. Hospital, Jammu issued a certificate to the effect that the right tympanic membrane was intact and that the hearing was normal. There was no mention that an operative procedure had been undertaken on the previous day to correct the perforation. Therefore, strictly speaking, there was no error which was pointed out in the first medical examination report on this aspect. 12. There was no mention that an operative procedure had been undertaken on the previous day to correct the perforation. Therefore, strictly speaking, there was no error which was pointed out in the first medical examination report on this aspect. 12. However, based on the certificate submitted by the appellant, as stated above, the Review Medical Board was directed to be conducted and it was conducted. The Review Medical Board on conducting the medical examination of the appellant found him to be ‘unfit’ as pointed out above because the Tympanoplasty of the right ear had been done on 26.05.2016 and the period of 120 days had not elapsed. 13. We do not agree with the learned counsel for the appellant in her submission that the review medical board should have been conducted only after 120 days had elapsed from the date of the operative procedure. It is a condition of the first medical examination itself that there should not be any perforation in the tympanic membrane and in case there was a surgery done for correcting perforation, the same ought to have done at least 120 days prior to the medical examination. The crucial point of time which has to be kept in mind is the date of the first medical examination and not the date of the review medical examination. Consequently, we are of the view that the decision of the learned Single Judge in dismissing the writ petition does not call for any interference. 14. The appeal is dismissed.