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2019 DIGILAW 312 (PAT)

Md. Imran Khan v. State Of Bihar

2019-02-20

ASHUTOSH KUMAR

body2019
JUDGMENT : ASHUTOSH KUMAR, J. 1. Heard the learned counsel for the parties. 2. The petitioner has challenged the order dated 21.07.2010, issued under the signature of the Deputy Inspector General of Police, Group Centre, C.R.P.F., Mokamaghat, Bihar (Respondent No. 3), communicating to the petitioner that his candidature for being appointed as a Sepoy in C.R.P.F. has been cancelled because of medical reasons. 3. To recapitulate the facts, the petitioner cleared the physical and other tests but was subjected to medical test in which, in the first round, he was found to be medically unfit. As per the rules, the petitioner preferred an appeal against the aforesaid rejection of his candidature on medical grounds and was granted a revisit of the opinion by a Review Medical Board. The Review Medical Board also found that the petitioner did not qualify for being termed medically fit. 4. The petitioner, in the meantime, had taken an opinion from a doctor from a government hospital which indicated that any person who has suffered pleural effusion and has been cured, would not have any problem with his health under any circumstance, for serving in the Army/Para-Military Installations. Even with the aid of such opinion by a qualified doctor of a government hospital, the request of the petitioner for being considered was rejected, forcing the petitioner to approach this Court to challenge the decision of the respondents. This Court, after setting aside such decision, remitted the matter to the concerned authority for holding another medical review in the light of the opinion given by the doctor of the government hospital. Consequently, the petitioner was further subjected to a medical test and again was found to be unfit. The opinion in the last round of medical review indicates that there were no optical lesions and only the lung walls appear to have thickened. 5. This Court does not understand as to how the thickening of pleural walls could be treated as existing disease or trace of a serious disease. Precisely for this reason, it was indicated in the earlier order passed by this Court on 30.11.2018 that in cases of pleural effusion, which is a form of tuberculosis, the liquid which gets accumulated in lungs contains protein and unless it is aspirated out of the body or treated with oral medicines, the liquid dries up, forms flakes but later dissolves. With the dissolution of the flakes, no trace remains of the aforesaid disease and there are very little chances of relapse of such disease. It may also be noted that the medication for pleural effusion is the same as that of tuberculosis, which is a prolonged and sustained treatment. 6. This Court realizes the limitations of imposing any opinion. Any discussion over the symptoms of the disease, its cure and whether even after cure, there could be a prognosis of its relapse, is in the domain of medial knowledge and it would not be for the Court to adumbrate the same. Nonetheless, where a Court of law is faced with a situation where the rightful claim of a person has been defeated on account of an interpretation even by a qualified doctor, it does raise an eye-brow and it would be abdicating one’s judicial function in not taking note of such aberration in the medical opinion, more so when it takes away the rights of a person of employment. 7. While saying so, this Court has remained all through conscious of the fact that the petitioner in this case was an applicant for the post of Sepoy in a Para-Military organization where the choice of the employer with respect to the suitability of the applicant is normally not to be questioned. It would also not be proper to make any inroads into the aforesaid domain of decision making. But, in accordance with the Wednesbury Principles, any decision which is not based on objective reason can not be sustained in the eyes of law. It is with this idea in mind and with this particular explanation about the aforesaid disease and its aftermath, that the decision of the Medical Board in rejecting the claim of the petitioner has been viewed. 8. Realizing the limitations of a Court while exercising jurisdiction under Article 226 of the Constitution of India, this Court only deemed it necessary to ask the learned Additional Solicitor General to at least intimate the Court about parameters of fitness which is expected of a candidate in a Para-Military organization. In a most fair manner, the learned Additional Solicitor General, assisted by Mr. Anshuman Singh, learned advocate, has brought on record the parameters which is an exhaustive list of conditions under which a person could be declared unfit. 9. In a most fair manner, the learned Additional Solicitor General, assisted by Mr. Anshuman Singh, learned advocate, has brought on record the parameters which is an exhaustive list of conditions under which a person could be declared unfit. 9. With regret, I must say, none of the entries in such list can come to the rescue of the respondents, at least for the purposes of defending the decision of the Medical Board. In the opinion of this Court, there is no existence or trace of any disease for the petitioner to be declared unfit. 10. So far with respect to the assessment of the Review Medical Board. At this stage, it is necessary to quote the opinion of the review Medical Board: ‘Left lung lower lobe peripherally show fine irregular opacities which may represent small irregular scar. No obvious active lung lesion is seen’. 11. The aforesaid opinion has been extracted/quoted for ready reference to indicate that such observation does not fit in any one of the medial impediments listed in the parameters enumerated in the list of such medical conditions under which a person could be rejected on the ground of being medically unfit. 12. After having said that, this Court has also reminded itself that there has been a long efflux of time and possibly the petitioner/applicant would have crossed the age for being accommodated in any Para-Military service, much less the C.R.P.F. Another aspect which haunts this Court is whether the petitioner has remained perennially expectant of getting relief from the department/Court and did not look for any additional avenue in life? This is a situation of fact about which no argument has been advanced nor this Court would like to go into the same. 13. However, since for no fault of the petitioner, but only on the opinion of the Medical Board on the basis of the thickening of the lung walls, he was not considered and successive medical reviews for the same, led to lapse of time, it is expected of the C.R.P.F. administration to at least find out whether, on date, the petitioner is medically fit to be accommodated in any other post of the same genre, provided the petitioner is wiling for the same and is not gainfully employed now and is within the age of induction in Para-Military service. 14. 14. Under the circumstances, learned senior advocate appearing for the petitioner has also not pressed for consideration of the case of the petitioner on the post of the Sepoy or Constable (General Duty) but on any other post which would fetch him at least his livelihood, which according to him, was snatched away from him. 15. There is no gainsaying that an organization which is an employer cannot be directed to take in employment somebody who would not be of any use for him. Nonetheless, since the organization has all the trappings of the State, the applicant who comes from the pool of the citizens, can not be sent back home with such apathetic attitude. 16. For the aforesaid reasons, this Court completely rejects the opinion of the review Medical Board with respect to the unsuitability (medically) of the petitioner for being considered for his employment as General Duty Constable. 17. However, as have been noted earlier, the concerned respondents authorities, if represented by the petitioner, enclosing a copy of this order, within a period of four weeks from today, shall take a decision to accommodate the petitioner in any capacity commensurate with his qualification and availability of the post with the Establishment within a period of eight weeks thereafter. If that is not possible, any other decision keeping in mind that the future of the petitioner has been completely marred, shall be taken. 18. With the aforesaid observation/direction, this writ petition stands disposed off.