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2021 DIGILAW 64 (ALL)

Diwakar Paswan v. State Of U P

2021-01-12

YASHWANT VARMA

body2021
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Piyush Shukla, learned Additional Chief Standing Counsel who appears for the State respondents. 2. This petition has been preferred seeking the following reliefs:- "(i) Issue a writ, order or direction, in the nature of certiorari, calling the record of the case and quashing the medical examination result of the petitioner, dated 07/09/2020 & 09/09/2020 (which has not been served upon the petitioner and it was orally informed that the petitioner is medically unfit having "Hydrocele Testicle") declared by the Medical Board, for the post of Constable Civil Police and Constable PAC, Direct Recruitment -2018-II, pursuant to the Advertisement dated 16/11/2018 and in pursuance of the select list issued vide Notification dated 02/03/2020. (ii) Issue a writ, order or direction, in the nature of mandamus, commanding the Respondent Authorities, treating the petitioner as medically fit in the medically examination for the post of Constable Civil Police and Constable PAC, Direct Recruitment -2018-II, pursuant to the Advertisement dated 16/11/2018 and select & appoint him finally for the said post, in pursuance of the select list, issued vide Notification dated 02/03/2020. (iii) Issue a writ, order or direction, in the nature of mandamus, directing the Respondent Authorities, to declare the petitioner as a selected candidate finally and appoint him on the post of Constable, and send him necessary training for the post of Constable Civil Police and Constable PAC, Direct Recruitment -2018-II, pursuant to the Advertisement dated 16/11/2018 and in pursuance of the select List issued vide Notification dated 02/03/2020" 3. The petitioner who had participated in a recruitment exercise initiated by the respondents for appointment on the post of Constable in the Civil Police and PAC has been declared medically unfit. That opinion which was formed initially by the Medical Board constituted by the respondents, was affirmed by the Review Medical Board. Upon the petitioner being declared medically unfit, his candidature was rejected by the respondents. The sole ground on which the aforesaid medical opinion is challenged is a certificate obtained by the petitioner from a Government Hospital on the basis of which it is contended that the decision of the respondents is liable to be interfered with and set aside. 4. The Court finds itself unable to countenance the submission for the following reasons. 5. The sole ground on which the aforesaid medical opinion is challenged is a certificate obtained by the petitioner from a Government Hospital on the basis of which it is contended that the decision of the respondents is liable to be interfered with and set aside. 4. The Court finds itself unable to countenance the submission for the following reasons. 5. The parameters of judicial review in respect of the opinion formed by a Medical Board was duly enunciated by the Court in State of U.P. Vs. Rahul, 2016 (3) ADJ 327 . In Rahul, the Division Bench observed thus:- "This Court in previous decisions has emphasized the need to preserve the sanctity of the recruitment process and of the care and circumspection which has to be exercised before the findings of an expert medical Board constituted by the authorities are interfered with in writ proceedings. Undoubtedly, the powers of the Court under Article 226 of the Constitution are wide enough to issue such a direction in an appropriate case. However, such directions cannot be issued merely on the basis of a request made in that behalf before the Court. In a recent judgment of this Court in Union of India through Ministry of Railways vs. Parul Punia, this Court has emphasized the need for caution when candidates seek to question the correctness of the findings of a medical Board constituted under the recruitment process adopted by the authorities of the State, on the basis of a report obtained by the candidates. The Division Bench observed as follows: "...In a number of such cases, candidates who have been invalidated on medical grounds produce expert opinions of their own to cast doubt on the credibility of the official medical report constituted by the recruiting body. In such cases, the Court may not have any means of verifying the actual identity of the person who was examined in the course of the medical examination by the Doctor whose report is relied upon by the candidate. In such cases, the Court may not have any means of verifying the actual identity of the person who was examined in the course of the medical examination by the Doctor whose report is relied upon by the candidate. Hence, even though the authority whose medical report was produced by the candidate may be an expert, the basic issue as to whether the identity of the candidate who was examined, matches the identity of the person who has applied for the post is a serious issue which cannot be ignored..." Dealing with the parameters of the writ jurisdiction in such cases, the Division Bench observed thus: "...Undoubtedly, in a suitable case, the powers of the Court under Article 226 are wide enough to comprehend the issuance of appropriate directions, but such powers have to be wielded with caution and circumspection. Matters relating to the medical evaluation of candidates in the recruitment process involve expert determination. The Court should be cautious in supplanting the process adopted by the recruiting agency and substituting it by a Court mandated medical evaluation. In the present case the proper course would have been to permit an evaluation of the medical fitness of the respondent by a review medical board provided by the appellants. Otherwise, the recruitment process can be derailed if such requests of candidates who are not found to be medically fit for reassessment on the basis of procedures other than those which are envisaged by the recruiting authority are allowed. This would ordinarily be impermissible." More recently reiterating the principles enunciated in Rahul, another Division Bench of the Court in Manish Kumar Vs State of U.P., 2020 SCC OnLine ALL 923 observed: 16. We may observe that although the powers of the Court under Article 226 are wide enough to issue directions in appropriate cases but such powers are required to be wielded with caution and circumspection. Matters relating to the medical evaluation of candidates in a recruitment process involve expert determination and the Court should exercise caution in supplanting the process adopted by the recruiting agency and substituting it by a Court mandated further medical evaluation. 17. Matters relating to the medical evaluation of candidates in a recruitment process involve expert determination and the Court should exercise caution in supplanting the process adopted by the recruiting agency and substituting it by a Court mandated further medical evaluation. 17. Any such exercise in acceding to requests of candidates who are not found to be medically fit for reassessment on the basis of procedures other than those envisaged by the recruiting agency under the relevant rules would result in the recruitment process being derailed, which would ordinarily be not permissible. 18. In a case where the recruitment process has been carried out as per prescribed statutory rules whereunder a procedure has been prescribed for testing the medical fitness of candidates by a duly constituted Medical Board, the report of the Medical Board is not to be normally interfered with, solely on the basis of a claim sought to be set up by a prospective candidate. 19. In the instant case, the writ petitioner has been found medically unfit by a duly constituted Medical Board and the said finding with regard to his unsuitability on medical grounds has been affirmed by the Appellate Medical Board, and further the opinion of a private medical practitioner which was sought to be relied upon in the writ petition also does not contain any specific opinion that the petitioner was not suffering from the ailment on the basis of which he had been declared unfit by the Medical Board. 20. In the aforementioned circumstances, we are of the view that no further indulgence is required to be granted to the appellant-writ petitioner in this regard. This is, more so, since it is not the case of the petitioner that the decision of the Medical Board was arbitrary, capricious or not in accordance with the procedure under the relevant statutory recruitment rules. 21. No material has been placed on record, or otherwise referred, to suggest that the opinion of the Medical Board or the Appellate Medical Board could in any manner be said to be casual, inchoate, perfunctory or vague. We are therefore of the view that the Medical Board being an expert body, its opinion is entitled to be given due weight, credence and value. 22. A similar view has been taken in recent judgments of this Court in Vivek Kumar v. State of U.P. and Md. We are therefore of the view that the Medical Board being an expert body, its opinion is entitled to be given due weight, credence and value. 22. A similar view has been taken in recent judgments of this Court in Vivek Kumar v. State of U.P. and Md. Arshad Khan v. State of U.P. wherein it was held that matters relating to medical evaluation of candidates in a recruitment process involve expert determination and it may not be desirable to supplant the procedure prescribed therefor as laid down under the relevant recruitment rules and taking any other view may have the effect of derailing the recruitment process. Dealing with an identical challenge this Court in Prakash Singh Vs. State of U.P., 2018 SCC OnLine ALL 5517held: “The petitioner essentially calls upon the Court to rule on and evaluate the correctness of the reports submitted by experts in their fields. These submissions and reliefs have evidently been sought and addressed without bearing in mind the contours of the writ jurisdiction. The opinion of a Medical Board is the outcome of an evaluation by experts in the subject. Except in exceptional situations such as where a finding of unfitness is returned in violation or disregard of the standards prescribed or on grounds which may call upon this Court to consider the correctness of the opinion on a legal plain, it would be wholly inappropriate for this Court to either interfere with the same or substitute its own opinion with respect to the medical fitness of a particular candidate. Treading this path may also cause serious prejudice and jeopardise the recruitment process itself. The Court is constrained to enter this note of caution conscious of its own limitations with respect to adjudging the medical fitness or otherwise of a particular candidate. In the ultimate analysis, it would be pertinent to emphasise that such requests must be entertained with due care and circumspection.” 6. The Delhi High Court in a recent decision handed down in the matter of Km Priyanka Vs. Union of India, W.P. (C) 10783/2020 decided on 21 December 2020 cautioned against interfering with the opinion formed by medical boards constituted for selection of members of the armed forces on the strength of certificates issued by private or civilian doctors in the following terms: - “8. Union of India, W.P. (C) 10783/2020 decided on 21 December 2020 cautioned against interfering with the opinion formed by medical boards constituted for selection of members of the armed forces on the strength of certificates issued by private or civilian doctors in the following terms: - “8. We have on several occasions observed that the standard of physical fitness for the Armed Forces and the Police Forces is more stringent than for civilian employment. We have in Priti Yadav Vs. Union of India 2020 SCC Online Del 951;Jonu Tiwari VS. Union of India 2020 SCC Online Del 855; Nishant Kumar Vs. Union of India SCC Online Del 808; and Shravan Kumar Rai Vs. Union of India 2020 SCC Online Del 924 held that once no mala fides are attributed and the doctors of the Forces who are well aware of the demands of duties of the Forces in the terrain in which the recruited personnel are required to work, have formed an opinion that the candidate is not medically fit for recruitment, opinion of private or other government doctors to the contrary cannot be accepted inasmuch as the recruited personnel are required to work for the Forces and not for the private doctors or the government hospitals and which medical professionals are unaware of the demands of the duties of the Forces.” 7. Although learned counsel for the petitioner has placed reliance upon certain interim orders passed by learned Judges of the Court and which stand appended as Annexure 7 to the writ petition, the Court notes that none of those interim orders notice or deal with the principles as elucidated by the Division Bench in Rahul or the decisions in Manish Kumar and Prakash Singh noticed above. 8. It becomes pertinent to note that the opinions formed by the Medical and Review Boards have not been assailed by the petitioner on the ground of mala fides. A review of those decisions is sought solely on the basis of a contrary opinion rendered by a doctor of a government hospital. Permitting a reopening of a medical examination conducted by the respondents solely on that basis would set a dangerous precedent especially when the Court by virtue of its inherent limitations would be wholly unequipped to undertake a comparative analysis or evaluation of competing medical opinions. Permitting a reopening of a medical examination conducted by the respondents solely on that basis would set a dangerous precedent especially when the Court by virtue of its inherent limitations would be wholly unequipped to undertake a comparative analysis or evaluation of competing medical opinions. Medical fitness is a subject best left for determination by experts and should not be lightly interfered with unless it be shown to be contrary to the standards prescribed or otherwise be liable to be assailed on other judicially manageable parameters. 9. Quite apart from the consistent view taken by Courts on this question regard must also be had to the fact that the medical examination in the present case was undertaken in accordance with the provisions made in the statutory rules. Those Rules confer finality upon the opinions formed by the Medical Boards subject to an appeal against the same before a Review Medical Board. Those Rules do not envisage or contemplate a challenge to those reports based upon reports and opinions privately obtained by candidates. Permitting such a course of action would not only be contrary to the Rules which apply and bind the candidate but also result in derailing the recruitment process itself. 10. For all the aforesaid reasons, the Court finds no ground to issue the writs as prayed for. 11. The writ petition is dismissed.