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2020 DIGILAW 756 (JHR)

Mithun Kumar v. State of Jharkhand

2020-08-05

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT : This writ petition was heard along with WPS No.4489 of 2018, WPS No.1905 of 2019, WPS No. 4351 of 2018, WPS No.4609 of 2018, WPS No.5001 of 2018 and WPS No.6359 of 2018 and the judgment was reserved. 2. Since this matter is of the year 2017 and in this writ petition, the prayer is for quashing of the final merit list is there and in light of the objection raised by the learned counsel appearing in such cases about withdrawal of the writ petition separate order is being passed in this writ petition. 3. The petitioner has preferred this writ petition for quashing of the final merit list published for appointment on the post of constable issued by the respondent authorities whereby the petitioners (36 nos.) have not been declared as selected candidates even if the petitioners were having more marks than the selected candidates and have also qualified the medical as well as physical test. 4. The facts of the case is, in short compass, that pursuant to an advertisement being Advertisement No.4 of 2015 issued by the respondent-Jharkhand Staff Selection Commission [hereinafter to be referred as JSSC] for the appointment on the post of constable, the petitioners applied for the appointment on such posts. The petitioners were issued Admit Card for appearing in the Preliminary Test. The respondents conducted the exam in form of marking OMR sheets. The Roll numbers of the writ petitioners are disclosed in paragraph no.11 of the writ petition. The petitioners were declared successful in the preliminary examination and the result thereof was declared on 15.06.2016. The petitioners were called in the main test and for that also the Admit Cards were issued. The petitioners were declared successful. The carbon-copy of the OMR-sheet and the preliminary test copy was provided to the petitioners. The petitioners were, in legitimate expectation that they will be selected, the petitioners were called for medical and physical test and were issued Admit Card with the same roll numbers. The result was declared on 13.11.2016. The petitioners appeared before the physical/medical test which was conducted from 26.11.2016 to 30.11.2016. All the petitioners have been declared successful in the said examination. The result was also declared as successful and they were also called for documents verification. The documents verification was conducted in between 28.11.2016 to 30.12.2016. The result was declared on 13.11.2016. The petitioners appeared before the physical/medical test which was conducted from 26.11.2016 to 30.11.2016. All the petitioners have been declared successful in the said examination. The result was also declared as successful and they were also called for documents verification. The documents verification was conducted in between 28.11.2016 to 30.12.2016. The petitioners were asked to sign on a blank proforma which was with regard to medical fitness. It has been stated that petitioners obtained marks which is more than 60 % and as such they were expecting to be declared finally selected, however, in the final result, to the utter shock and surprise of the petitioners, the names of the petitioners were not included in the same list. Out of 850 advertised seats, 622 candidates were declared as successful. When the petitioners did not find their names in the select-list, they orally examined about non-appearance of their names in the selected candidates list and were in turn, orally informed that the petitioners were medically unfit for appointment. The petitioners suo-muto got themselves examined, whereby they have been declared medically fit vide Annexure-11. 5. Aggrieved with the non-selection, the petitioners have filed the writ petition. 6. The Court on 11.08.2017 passed the following order in this writ petition: “Heard Mr. Shresth Gautam, learned counsel appearing on behalf of the petitioners, learned Advocate General, appearing on behalf of the State and Mr. Sanjay Piprawal, learned counsel appearing on behalf of Jharkhand Staff Selection Commission. In this writ petition, the petitioners have prayed for a direction upon the respondents to declare the 36 writ petitioners as medically fit and to be considered for appointment to the post of Constable in Jharkhand Armed Police (JAP). The petitioners claims that they have passed the preliminary test as well as the main examination and their respective roll numbers have been reflected in the merit list, which was prepared after the main examination. The petitioners thereafter, were sent for medical test and they were declared successful but their appointments were not made. The petitioner could come to know that they were found physically fit but were declared medically unfit by the Medical Board, constituted as per the Rules, as such, their names were not recommended for appointment. The petitioners thereafter, were sent for medical test and they were declared successful but their appointments were not made. The petitioner could come to know that they were found physically fit but were declared medically unfit by the Medical Board, constituted as per the Rules, as such, their names were not recommended for appointment. It is the case of the petitioners that they could come to know that on the ground of knock-knee or flat feet etc., they were disqualified. The counsel for the petitioners submits and pleads that the petitioners were forced to sign on blank sheets, which were converted into their acknowledgment of the Medical Board. The petitioners then got themselves suo motu medically examined by Civil Surgeon, Sadar Hospital, Ranchi. It was found that the petitioners do not suffer from the aforesaid infirmity and on this ground, the petitioners have moved this Court. Counter affidavit was filed by the State and also by the Jharkhand Staff Selection Commission. The medical board was constituted as per Rules for the medical examination of the petitioners. The report of the Medical Board was brought on record in respect of these present 36 petitioners by the respondents. This report suggests that these 36 petitioners were declared medically unfit. Since, there were two divergent views; one by the Medical Board and one by the Medical Officer of the Sadar Hospital (both being the Government Servants), this Court vide order dated 7th July, 2017 requested the Assistant Solicitor General of India to assist this Court in getting these 36 petitioners examined by a Neutral Medical Board. The Assistant Solicitor General of India suggested that these 36 petitioners should be got examined by the DIG, Medical, C.R.P.F., Ranchi Composite Hospital, Sambo, Ranchi. This Court vide order dated 7th July, 2017 thus directed the petitioners to appear before the DIG, Medical, C.R.P.F., Ranchi Composite Hospital, Sambo, Ranchi, with a request to the DIG to get these petitioners medically examined and submit a report to this Court. Pursuant to the direction of this Court, 35 petitioners, appeared before the Medical Board, constituted by the DIG, Medical, C.R.P.F., Ranchi Composite Hospital, Sambo, Ranchi. The said Medical Board was constituted of three Medical Officers of C.R.P.F. presided over by Dr. M.K. Sinha, CMO(SG), (Ortho Specialist), CH, CRPF, Neemuch, Dr. Bithika Singh, CMO (SG), CH, CRPF BBSR and Dr. S.K. Parimal, Eye Specialist (Cont.), CH, CRPF, Ranchi. The said Medical Board was constituted of three Medical Officers of C.R.P.F. presided over by Dr. M.K. Sinha, CMO(SG), (Ortho Specialist), CH, CRPF, Neemuch, Dr. Bithika Singh, CMO (SG), CH, CRPF BBSR and Dr. S.K. Parimal, Eye Specialist (Cont.), CH, CRPF, Ranchi. The Medical Board of CRPF found that 30 petitioners out of 35 petitioners were found medically fit. One petitioner i.e. petitioner No. 11 has not appeared before the Board and rest five petitioners, whose names are appearing at Sl. Nos. 18, 19, 22, 24 and 36 were found medically unfit. In view of the report of the Medical Board of the CRPF, this Court, prima facie, expressed opinion that large scale wrong/illegalities/irregularities have been committed by the Medical Board in relation to the appointment of constables and an order was passed on 28.7.2017 to this effect, as the total number of vacancies were approximately 7000 in the advertisement. Mr. Ajit Kumar, the learned AAG (as he then was) on 28.7.2017 prayed to defer the matter for seeking instructions from the State as to what action can be taken in this case and to suggest how the wrong/illegalities/irregularities can be undone. Today, the State has filed a counter affidavit suggesting remedial measures, which the State intends to take in this matter. This Court has taken note of the fact notes that the State has not questioned the report of the medical Board of CRPF in respect of 30 petitioners, who appeared before the Board. Mr. Ajit Kumar (now the Advocate General of the State) submits that the State has got no intention to challenge the findings of the Medical Board of CRPF so far as these 36 petitioners are concerned. The learned A.G. refers to paragraph 14 of the counter affidavit, filed today, which is sworn by one Chandra Prakash Pandey, Under Secretary, Department of Home, Prisons and Disaster Management, Govt. of Jharkhand, Ranchi, and submits the measure which the State intends to take to remedy the illegalities. It is necessary to quote paragraph 14 of the said affidavit, which reads as under:- “14. That it is further submitted that the office of the answering respondent also issued letter No. 4193 dated 29.7.17 to the DGP seeking a report with opinion with respect to the direction's contained in the aforementioned order of this Hon'ble Court in the captioned matter. That it is further submitted that the office of the answering respondent also issued letter No. 4193 dated 29.7.17 to the DGP seeking a report with opinion with respect to the direction's contained in the aforementioned order of this Hon'ble Court in the captioned matter. The Chairman, JSSC and the DGP, Jharkhand, sent their response vide letter No. 1482 dated 2.8.2012 and letter No. 1074 dated 2.8.2017 respectively. In the light of the report/opinion of the Jharkhand Staff Selection Commission and the Police Head Quarters, the State Government has approved following course of action:- (i) An Appellate/Apex Medical Board may be constituted comprising a specialists/Senior Medical Officer for medical test. (ii) Since this matter is related to competitive Examination conducted by Jharkhand Staff Selection Commission, remedical examination of those candidates, who secured higher marks in the merit list than that of category wise the recommended candidates, may be conducted. (iii) The candidates fulfilling the criteria at serial (ii) of the decision shall submit their earlier medical report to the appellate/Apex Medical Board and the said Board shall submit its opinion/report after examining the candidates afresh. The Appellate/Apex Medical Board shall also examine the records/medical reports issued by the earlier medical Board. The said Board shall also report as to whether any false report has been submitted by the earlier constituted medical Board. The Appellate/Apex Medical Board shall identify such medical officers submitting false report and shall forward the same to the department of Health, Medical Education and Family Welfare and the said department in turn, would proceed with disciplinary and legal actions against the erring medical officer. (iv) For the aforementioned medical reexamination a committee may be constituted by the Department of Health, Medical Education and Family Welfare comprising Director-in-Chief of Health Services with Officer of the rank of Additional Secretary/Joint Secretary in order to ensure transparent and fair medical test. (v) Digital Camera/CCTV may be installed at the place of Medical Test in order to maintain transparent and fair Medical Test. Medical Test of the candidates shall be conducted after due physical verification through Biometric System. (vi) For such type of competitive examination for appointment in different cadres to be held in future a provision may be made for appeal before the Appellate/Apex Medical Board for such candidates who fail in medical test by the medical board wherever medical test is mandatory for selection of candidates. (vi) For such type of competitive examination for appointment in different cadres to be held in future a provision may be made for appeal before the Appellate/Apex Medical Board for such candidates who fail in medical test by the medical board wherever medical test is mandatory for selection of candidates. (vii) A fresh revised merit list may be prepared after the candidates are declared fit by the Appellate/Apex Medical Board and accordingly selected candidates may be appointed against the vacancies.” From perusal of paragraph 14 of the counter affidavit, this Court feels that the State has intention to correct the wrong/ illegalities/ irregularities committed by the Medical Board. Thus, keeping in view of paragraph 14 of the counter affidavit, I direct the State to take appropriate action in terms of their undertaking given in the said paragraph within three months from today. After completing the fresh medical examination, the State will prepare a fresh Merit list. After preparing the fresh merit list of each category, the State will also issue fresh appointment letter to the selected candidates as per the fresh merit list and the State will also take an appropriate action to remove the candidates who are found medically unfit in reexamination and have been appointed. Also the persons whose name will not find place in the fresh merit list, prepared after medical reexamination, if already appointed, will also be removed, as their appointment will be illegal and void. So far as fresh medical examination is concerned, the State undertakes to conduct the same in terms of paragraph 14 of the counter affidavit, filed today. This Court also directs that 30 petitioners, except the petitioners whose names are appearing at Sl. Nos. 11, 18, 19, 22, 24 and 36, will be treated to be medically fit and they will not be subject to medical reexamination. The State will also give notice to the last selected candidates of each category to be medically re-examined because there is possibility that after conducting fresh medical re-examination, the position in the merit list and the cut off marks may change in each category. The State is also directed to declare the marks of the last selected candidate, as per statement given in paragraph 14 of the said counter affidavit. After completing the entire process, the State will file an affidavit, which must be sworn by the Secretary of the Department. The State is also directed to declare the marks of the last selected candidate, as per statement given in paragraph 14 of the said counter affidavit. After completing the entire process, the State will file an affidavit, which must be sworn by the Secretary of the Department. The affidavit will suggest about the action which has been taken or intended to be taken against the Medical Board, who have wrongly disqualified these 30 petitioners. Let a copy of this order be handed over to Mr. Vikash Kumar, learned J.C. to A.G. for necessary communication. List this case after three months.” 7. Pursuant to that order, the petitioners were examined by the medical board of CISF for appointment vide letter dated 23.02.2018 addressed to the Deputy Inspector General of Police, Jharkhand Armed Police (JAP), Ranchi and, out of 36, 30 petitioners were declared medically fit by the CISF medical board which was constituted in terms of the order dated 11.08.2017, but the appointment letters were issued in favour of 29 persons, but could not issue appointment letter to one Rajnish Kumar as he was absent, this fact was recorded in the order dated 27.02.2018. 8. In view of this development, the petitioners have filed I.A. No.3794 of 2020 for withdrawal of the writ petition stating therein that facing re-medical test conducted in terms of the order of this Court, the petitioners were appointed and in that view of the matter they did not want to press this matter and sought permission for withdrawal of the writ petition. 9. The learned counsel appearing for the petitioners in other cases, vehemently opposed the Interlocutory Application and submitted that the writ petition needs to be decided as only on the basis of the interim order the petitioners have got the appointment letter and opposed the withdrawal of the writ petition and in that view of the matter, the matter was heard on its merits. 10. Mr. Manoj Kumar, the learned State counsel has submitted that in view of the paragraph no.14 of the counter affidavit the order dated 11.08.2017 was passed by the Court and taking into account that the State has got the intention to correct the wrong/illegality/irregularity committed by the medical board. 10. Mr. Manoj Kumar, the learned State counsel has submitted that in view of the paragraph no.14 of the counter affidavit the order dated 11.08.2017 was passed by the Court and taking into account that the State has got the intention to correct the wrong/illegality/irregularity committed by the medical board. He submitted that in view of the said paragraph no.14 of the counter affidavit, the said order was passed and pursuant thereto the State after constituting the medical board, which was constituted in terms of the order, has already issued the appointment letters as by the newly constituted medical board, the petitioners were found to be medically fit. 11. Mr. Sanjoy Piprawal, the learned counsel appearing on behalf of the respondent-JSSC submitted that JSSC has got no role at this stage. The apex medical board was constituted pursuant to the order of the Court. The petitioners on notice without any protest appeared in the medical examination. He refers to paragraph nos.13 and 14 of the counter affidavit and submitted that in the light of that fresh recommendation has already been made and the posts have been filled up and thus, the grievance of the other petitioners are not tenable. He further submitted that the respondent-JSSC has also done its part. 12. Mr. Anil Kumar Sinha, the learned Senior counsel submitted that the writ petition cannot be allowed to be withdrawn as on the basis of the interim order the petitioners got appointment. He submitted that the writ petitioners in other matters were not party in this writ petition and in their absence the said order has been passed. He further submitted that as there is order of the High Court in that view of the mater, the petitioners appeared in the re-constituted medical board. He further submitted that without any show cause notice, the petitioners in other cases have been dismissed. He further submitted that the statements in the counter affidavit of the State and the JSSC are contradictory. 13. Having heard the learned counsels appearing for the parties, the Court has entered into to examine the merit of the writ petition. It is an admitted fact that pursuant to the order dated 11.08.2017 which is quoted hereinabove supra, fresh medical board was constituted to be examined by the experts of CRPF. Paragraph no.14 of the counter affidavit of the State suggests that there were certain illegality. It is an admitted fact that pursuant to the order dated 11.08.2017 which is quoted hereinabove supra, fresh medical board was constituted to be examined by the experts of CRPF. Paragraph no.14 of the counter affidavit of the State suggests that there were certain illegality. The petitioners, in other cases, without any protest appeared in the medical board. The petitioners of other cases did not file any intervention application in this writ petition to get themselves impleaded. The interim order dated 11.08.2017 has not been challenged by the petitioners of other cases. The State has admitted the irregularities in paragraph no.14 of the counter affidavit. The petitioners of this case have already been appointed. In the light of these circumstances, particularly considering this aspect of the matter that the petitioners of other cases have appeared before the re-constituted medical board did not challenge the interim order, not tried to get themselves impleaded as party respondent in the writ petition. In the light of these facts on their protest the writ petition cannot be dismissed. The Court is not the expert to examine the medical board report and that too by the apex medical board which was constituted pursuant to the order of the Court. Moreover, the decision of reconstituted medical board has not been challenged either in this writ petition or in other writ petitions. The Court further found that pursuant to the order of this Court, which has attained the finality as it has not been challenged or any modification was sought by the other writ petitioners, they are having a very weak case. 14. Accordingly, the order dated 11.08.2017 is made absolute. 15. The writ petition [WPS NO.3239 OF 2017] stands allowed in that terms and disposed of. 16. I.A. if any is also disposed of.