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2021 DIGILAW 784 (ALL)

Ankit Kumar v. State of U. P.

2021-08-03

SARAL SRIVASTAVA

body2021
JUDGMENT : SARAL SRIVASTAVA, J. 1. Heard learned counsel for the petitioner and Sri. R.S. Umrao, learned Standing Counsel for the respondents. 2. The petitioner by means of the present writ petition has prayed for a writ of mandamus commanding respondents to conduct his re-medical examination for the post of Constable in Uttar Pradesh Police/Constable, Civil Police, and Constable P.A.C. Direct Recruitment 2018. 3. The brief facts of the case are that a notification dated 16.11.2018 was published by the U.P. Recruitment and Promotion Board, Lucknow inviting applications for recruitment of 49,568 posts for U.P. Police/Constable, Civil Police and Constable, P.A.C. Direct Recruitment 2018. 4. Pursuant to the aforesaid advertisement, the petitioner submitted an online application for being considered for appointment on the post of Constable in U.P. Police. The petitioner was called to appear in the physical efficiency test for the post of Constable in U.P. Police at 8th Batallion P.A.C. Bareilly in which he was found fit. 5. Thereafter, the documents of the petitioner relating to his qualification were checked and verified by the Recruitment Board. Subsequently, the petitioner was called for medical examination on 12.03.2021 at Police Lines by Senior Superintendent of Police, Etah. The petitioner appeared before the Medical Board on 12.03.2021 and was found unfit due to impaired ears. 6. Against the report of the Medical Board, the petitioner submitted a representation for a re-medical examination. The petitioner presented himself for a re-medical examination in which he was again found unfit due to dysfunctional ears. After the result of the re-medical examination, the petitioner got his ears checked by one Dr. Ashwani Kumar ENT Specialist, and according to his report dated 21.03.2021, the ears of the petitioner are fine, copy of the said report is annexed as Annexure 9 to the writ petition. 7. The petitioner also filed a prescription issued by Government District Hospital, Etah to demonstrate that his ears are fine. The prescription issued by Government District Hospital, Etah states that there is no dysfunction in the petitioner's ear. 8. Relying upon the aforesaid two medical reports issued by Dr. Ashwani Kumar and Government District Hospital, Etah, the petitioner has stated that the Medical Board did not examine him properly and he was wrongly declared unfit. 9. In the aforesaid backdrop, he has prayed for a writ of mandamus commanding respondents to conduct the re-medical examination. 10. 8. Relying upon the aforesaid two medical reports issued by Dr. Ashwani Kumar and Government District Hospital, Etah, the petitioner has stated that the Medical Board did not examine him properly and he was wrongly declared unfit. 9. In the aforesaid backdrop, he has prayed for a writ of mandamus commanding respondents to conduct the re-medical examination. 10. Learned counsel for the petitioner has contended that two medical reports issued by Dr. Ashwani Kumar ENT Specialist and medical report of Government District Hospital, Etah suggest that there is no dysfunction in the ears of the petitioner. Accordingly, he submits that the petitioner has been illegally declared medically unfit. The petitioner in support of his case has relied upon an interim order dated 23.07.2021 in Writ Appeal No. 6681 of 2021. Accordingly, he prays for parity of the interim order dated 23.07.2021 in Writ Appeal No. 6681 of 2021. Thus, he submits that action of the respondents in declaring the petitioner medically unfit is arbitrary and amounts to deny an opportunity of employment to the petitioner illegally. 11. Learned counsel for the petitioner has also placed reliance upon the judgment of this Court in Special Appeal Defective No. 639 of 2020 to contend that in the said appeal, identical interim order which has been passed in Writ Appeal No. 1680 of 2020 was assailed, and this Court dismissed the Special Appeal. Thus, he submits that it is a fit case where the Court should command respondents to conduct the re-medical examination of the petitioner. 12. Per contra, learned Standing Counsel would contend that the Medical Board is a body consisting of experts, and keeping in view the need and requirement of the police force about the physical fitness of a candidate, certain parameters have been laid down within which doctors of the Medical Board conduct the medical examination of a candidate and determine as to whether the candidate is medically fit or not. He submits that unless it is pointed out that Medical Board has conducted the medical examination of the petitioner mala-fidely or capriciously with an intent that the candidate does not get selected, the Court should refrain from supplanting its opinion over the report of the Medical Board. 13. He submits that unless it is pointed out that Medical Board has conducted the medical examination of the petitioner mala-fidely or capriciously with an intent that the candidate does not get selected, the Court should refrain from supplanting its opinion over the report of the Medical Board. 13. He contends that in the present case, the petitioner has been found medically unfit by the Medical Board and also on re-medical examination by the Review Medical Board, and there is nothing on record to demonstrate that medical examination, as well as review medical examination of the petitioner conducted by the Medical Board, smacks of mala-fide with a motive to keep the petitioner out of selection. Accordingly, he submits that the writ petition lacks merit and deserves to be dismissed. 14. He submits that the report of Dr. Ashwani Kumar, ENT Specialist and Government District Hospital, Etah cannot be relied upon in the absence of proof of its authenticity, and further perusal of the two medical reports do not disclose the procedure which had been adopted by the two doctors in examining the petitioner and concluding that the petitioner's ears are fine. In support of his aforesaid contentions, he has placed reliance upon the following judgments of this Court:- (i) Vivek Kumar vs. State of U.P. and Others, 2020 ADJ Online 0073 (ii) Union of India and Others vs. Parul Punia, 2016 (2) ADJ 14 (iii) Md. Arshad Khan vs. State of U.P. through Additional Chief Secretary, Principal Secretary, Home and Others, 2020 (9) ADJ 457 (iv) Diwakar Paswan vs. State of U.P. and Others, 2021 (0) Supreme (All) 47 15. I have considered the rival submissions of the parties and perused the record. 16. Before dealing with the contention advanced by the learned counsel for the petitioner, it would be apt to refer to Rule 15 (g) of Uttar Pradesh Police Constable and Head Constable Services Rules, 2015 (hereinafter referred to as ‘Rules, 2015’) and Appendix 3 which are being extracted herein-below: “15. Procedure for Direct Recruitment to the post of Constable: (a)........ (b)........ (c)........ (d)........ (e)........ (f)........ (g) Medical Examination - The candidates whose name are in the select list sent as per clause (e), will be required to appear for Medical Examination by the Appointing authority. Medical Examination will be conducted in the Police Line of the concerned District or at the place mentioned by the Appointing authority. (b)........ (c)........ (d)........ (e)........ (f)........ (g) Medical Examination - The candidates whose name are in the select list sent as per clause (e), will be required to appear for Medical Examination by the Appointing authority. Medical Examination will be conducted in the Police Line of the concerned District or at the place mentioned by the Appointing authority. Medical Examination will be conducted as per Appendix 3. The candidates found unsuccessful in Medical Examination shall be declared unfit by the Appointing authority and such vacancies shall be carried forward for next selection.” “APPENDIX 3 [See Rule 15g] Medical Examination for direct recruitment The Appointing authority will request the Chief Medical Officer of the concerned District to constitute Medical Board for conducting Medical Examination. The Medical Board will consist of three Doctors, who will conduct Medical Examination as per “Police Recruitment Medical Examination Forms” as prescribed and codified by Head of Department in consultation with Director General of Medical Health. This form will be available on U.P. Police website and also displayed at the place of Medical Examination. Medical Board may take services of any expert as per requirements: (1) The doctors will examine the candidates in accordance with the Medical Manual, if any, and announce the result on the day of the Medical Examination. (2) The result of the Medical Examination will be displayed on the notice board outside the premises at the end of the day. (3) Any candidate not satisfied by his Medical Examination, may file an appeal on the day of examination itself. Any appeal in regard to Medical Examination will not be considered if the candidate fails to file appeal on the date of Medical Examination and declaration of its result itself. The appeal should be disposed of by the Medical Board, constituted for the same purpose within two weeks of the appeal being filed. The Medical Board constituted for appeal shall have expert regarding Medical deficiency of the applicant. (4) The members of the Medical Board who are found to give wrong report wilfully will be liable for criminal proceedings. (5) The Medical Examination is only qualifying in nature and it has no effect on the merit list. The Medical Board constituted for appeal shall have expert regarding Medical deficiency of the applicant. (4) The members of the Medical Board who are found to give wrong report wilfully will be liable for criminal proceedings. (5) The Medical Examination is only qualifying in nature and it has no effect on the merit list. Note: The Medical Board will examine the candidates and their deficiencies such as knock knee, bow legs, flat feet, varicose veins, distant and near vision, colour blindness, hearing test comprising of Rinne's Test, Webber's Test and tests for vertigo etc. as notified by the government from time to time. The Medical Board may get conducted other examinations after obtaining opinion of experts.” 17. According to Rule 15(g) of the Rules, 2015, a candidate is required to undergo medical examination for ascertaining whether the candidate is medically fit for the post of Constable. The said rule provides that medical examination will be conducted as per Appendix 3. 18. A reading of Appendix 3, extracted above, discloses that the appointing authority will request the Chief Medical Officer of the concerned District to constitute Medical Board for conducting the medical examination. The Medical Board will consist of three doctors, who will conduct medical examination as per “Police Recruitment Medical Examination Forms” as prescribed and codified by the Head of Department in consultation with Director General of Medical Health. 19. Paragraph 1 of Appendix 3 further stipulates that doctors will examine the candidates in accordance with the Medical Manual, if any and announce the result on the same day. 20. Paragraph 4 of Appendix 3 provides that members of the Medical Board who are found to give wrong report willfully will be liable for criminal proceedings. 21. A reading of Rule 15(g) of Rules, 2015 read with Appendix 3 discloses that the procedure for medical examination has been provided in Appendix 3 and according to which, Medical Board shall consist of three doctors constituted by the Chief Medical Officer of the concerned district. The medical examination of a candidate is to be conducted as per the medical manual, and if any member of the Medical Board is found to have given wrong report willfully, he/she will be liable for criminal proceedings. 22. The medical examination of a candidate is to be conducted as per the medical manual, and if any member of the Medical Board is found to have given wrong report willfully, he/she will be liable for criminal proceedings. 22. Thus, it can be safely culled out that legislature has taken every care in constituting the Medical Board to conduct medical examination of a candidate fairly and without any bias. It is apt to notice that paragraph 4 of Appendix 3 provides that if members of the Medical Board give wrong report wilfully, they will be liable for criminal prosecution. 23. At this point, it would be apposite to consider when this court can interfere with the opinion of the Medical Board and Review Medical Board in the exercise of power under Article 226 of the Constitution of India. 24. In the case of Parul Punia (supra), this Court has set aside the judgment of Single Judge whereby learned Single Judge has allowed the writ petition of a candidate holding that respondent was wrongly disqualified in the medical examination by the appellant. In this respect, paragraphs 6, 9 and 10 of the said judgment are being extracted herein-below: “6. The first reason which weighed with the learned Single Judge was that the representation had been rejected in a ‘casual manner without assigning convincing reasons’ in support of the order. This reading of the learned Single Judge of the order disposing of the representation is not correct. The Chief Security Commissioner in his order dated 8 June 2015 recorded that once the respondent had been found not to meet the prescribed norms in the course of the medical examination and was categorized in category B-1, her name could not be included in the select list. This cannot in our view be regarded as an order which has been passed in a casual manner and without convincing reasons. The second reason which weighed with the learned Single Judge was that the respondent had produced a report of a Doctor from the All India Institute of Medical Sciences, Dr. Rajendra Prasad. Without casting aspersions on the expertise of the Doctor whose report was produced by the respondent, we must emphasize the inherent danger in the Court following such a line of inquiry. Rajendra Prasad. Without casting aspersions on the expertise of the Doctor whose report was produced by the respondent, we must emphasize the inherent danger in the Court following such a line of inquiry. 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. 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. The third reason which weighed with the learned Single Judge in passing the interim order was that in a judgment of a Division Bench dated 21 November 2007 (Arvind Kumar Sonkar vs. State of U.P. and Others), such a course of action had been followed of having the candidate examined by a substitute Board. What the learned Single Judge while passing the interim order failed to notice was the fact that the order dated 21 November 2007 of the Division Bench was passed by consent. In that case, a learned Single Judge had directed the authorities to get the petitioners examined by a special medical Board. The petitioners had challenged an order of termination which had been passed on the ground that they had failed to fulfill the minimum eligibility requirement for the post of constables. When the appeal filed by the constables came up for hearing before the Division Bench, the order of the learned Single Judge was modified by consent so as to provide for separate Boards, one for the purpose of an eye test and the other for a physical test. The Boards were to consist of a Doctor each from a Government Hospital, Sanjay Gandhi Post Graduate Institute and KGMC. This order which was passed by consent would therefore not be of precedential value. The Boards were to consist of a Doctor each from a Government Hospital, Sanjay Gandhi Post Graduate Institute and KGMC. This order which was passed by consent would therefore not be of precedential value. Hence, the considerations which weighed with the learned Single Judge in issuing an interim direction of 16 September 2015 would not sustain such an order being passed. 9. We also note that by the interim order of the learned Single Judge dated 16 September 2015, the Principal, KGMC was required to inform the Inspector General-cum-Chief Security Commissioner of the Railway Protection Force who could depute an officer to be present at the time of examination. The grievance of the appellants is that no such communication was issued by the Principal, KGMC to the Chief Security Commissioner and hence, no representative could be even deputed for the purpose of verifying the identity of the respondent. We are highlighting this aspect to emphasize the danger when the Court takes upon itself the process of reassessing findings which are contained in the medical examination conducted in the course of the recruitment process. 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. 10. For these reasons, we are of the view that the line of approach which was followed at the interlocutory stage by the learned Single Judge while passing the interim order dated 15 September 2015 and which ultimately merged in and formed the basis of the final direction dated 26 November 2015 is unsustainable.” 25. This would ordinarily be impermissible. 10. For these reasons, we are of the view that the line of approach which was followed at the interlocutory stage by the learned Single Judge while passing the interim order dated 15 September 2015 and which ultimately merged in and formed the basis of the final direction dated 26 November 2015 is unsustainable.” 25. This Court in the case of Vivek Kumar (supra) held that subsequent medical examination reports submitted by a candidate will not override or set at naught the opinion of the medical board. Paragraphs 7, 8, 11 and 12 of the said judgment are being extracted herein-below: “7. The scope of interference in matters relating to assessment of fitness by a Medical Board constituted under the statutory rules in exercise of powers under writ jurisdiction, in our opinion, would be extremely limited. 8. The Courts have, time and again, emphasised the need for caution when candidates seek to assail the correctness of the findings of a Medical Board constituted under a recruitment process adopted by the State authorities, on the basis of some medical report obtained by them. 11. In a case where a 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, and that too, solely on the basis of a claim sought to be set up by a candidate on the basis of some subsequent reports procured by him from a private practitioners. 12. 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.” 26. In the case of Md. Arshad Khan (supra), this Court placing reliance upon the judgment of this Court in the case of Vivek Kumar (supra) dismissed the appeal holding that in the absence of any material on record to suggest that the opinion of the Medical Board or Appellate Medical Board in any manner is casual, inchoate, perfunctory or vague, the report of Medical Board and Appellate Medical Board are not to be interfered with. It is further held that the opinion of the Medical Board is to be given due weight, credence, and value. 27. It is further held that the opinion of the Medical Board is to be given due weight, credence, and value. 27. In the case of Diwakar Paswan (supra) this Court held that the opinion of the Medical Board and experts should not be lightly interfered with unless it is shown to be contrary to the standards prescribed or smacks of mala-fide. Paragraphs 8 and 9 of the said judgment are being extracted herein-below: “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. 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.” 28. Now the case of the petitioner is analyzed in the light of Rule 15(g) of Rules, 2015 read with Appendix 3 and on the anvil of principles of law propounded by this Court in the aforesaid cases. In the present case, it is not in dispute that the petitioner has been found medically unfit by the Medical Board constituted by the Appointing Authority. In the present case, it is not in dispute that the petitioner has been found medically unfit by the Medical Board constituted by the Appointing Authority. The petitioner, thereafter, submitted representation against his rejection by the Medical Board, and the petitioner was sent for the re-medical examination before the Review Medical Board. The Review Medical Board also concurred with the opinion of the Medical Board. 29. The material which has been placed by the learned counsel for the petitioner is the report of Dr. Ashwani Kumar, ENT Specialist and Government District Hospital, Etah to contend that the report of the Medical Board, as well as Review Medical Board, is not correct. There is no pleading in the writ petition as to how the reports of two doctors procured by the petitioner are authentic and correct to create a doubt about the opinion of the Medical Board and Review Medical Board declaring the petitioner medically unfit. 30. At this point, it is worth mentioning that legislature has taken due care that Medical Board should conduct the medical examination fairly without any bias. To ensure fairness in the medical examination, it is provided in paragraph 4 of Appendix 3 that members of the Medical Board, if found to have given wrong reports willfully, will be liable for criminal proceedings. As the legislature has taken due care that Medical Board should conduct the medical examination of a candidate fairly, it would be unjust to doubt the veracity and authenticity of the report of the Medical Board as well as Review Medical Board declaring the petitioner medically unfit on the basis of prescription of an outside Doctor produced by the petitioner. 31. Further, the law enunciated by this Court, as noted above, has consistently held that the opinion given by the Medical Board as well as Review Medical Board should not be taken lightly and should be given due credence and it should not be annulled or set aside on the basis of the report of some private doctor or by a government hospital obtained by a candidate from outside. If the report of the private doctor or from any Government Hospital is relied upon to doubt the veracity of the opinion of the Medical Board, that would derail the selection process, and if such process is allowed to be continued, it would be very difficult for the recruiting body to bring the selection process to the logical end. 32. Further, it is also pertinent to mention that in the absence of any material on record to substantiate that the private doctor or doctor of a government hospital who investigated the petitioner had adopted the correct process to conclude that the petitioner does not suffer any disability, it would be improper and unwarranted to doubt the report of the Medical Board and Review Medical Board by relying upon the report obtained by a candidate from outside. If such a process is adopted, that would not only derail the selection process but would also cast suspicion on the selection process. 33. Thus, in this view of the fact, this Court believes that unless and until the candidate demonstrates by placing genuine and authentic material that the opinion of the Medical Board or Review Medical Board is erroneous or capricious or vague and smacks of mala-fide, the Court should refrain from interfering with the opinion of Medical Board and Review Medical Board which is a body constituted of experts to assess the fitness of candidate as per the norms and standards prescribed in respect of fitness of a candidate who is supposed to work in the police force. 34. It is no doubt true that this Court has power under Article 226 of the Constitution of India to interfere with the opinion of the Medical Board or Review Medical Board, but such power has to be exercised cautiously and sparingly in exceptional circumstances only in a given case where it is demonstrated that the opinion of the Medical Board or Review is palpably erroneous. 35. In the case in hand, there is no such material placed by the learned counsel for the petitioner to doubt the correctness of the opinion of the Medical Board and Review Medical Board. 36. So far as the reliance placed by the learned counsel for the petitioner on an interim order passed by this Court, it is worth noticing that the interim order has not considered any of the aforesaid judgments on the said issue. 37. 36. So far as the reliance placed by the learned counsel for the petitioner on an interim order passed by this Court, it is worth noticing that the interim order has not considered any of the aforesaid judgments on the said issue. 37. Further, the judgment of this Court in Special Appeal Defective No. 639 of 2020 has also not noticed any of the aforesaid judgments dealing with the issue at hand. The perusal of the said judgment does not disclose that it has laid down any law. The said judgment has been rendered in the peculiar facts and circumstances, therefore, the judgment of this Court in Special Appeal Defective No. 639 of 2020 does not come in aid to the petitioner. 38. Thus, for the reasons given above, the writ petition lacks merit and is accordingly, dismissed with no order as to costs.