Rakesh Kumar, S/o. Shri Dharam Singh v. Union of India, Through Its Secretary, Ministry of Home Affairs
2022-08-26
TARLOK SINGH CHAUHAN, VIRENDER SINGH
body2022
DigiLaw.ai
ORDER : The instant petition has been filed for the grant of following substantive reliefs:- (a) That the findings of the Detailed Medical Examination (DME) and Review Medical Examination (RME) Board, Annexure P-6, may kindly be quashed and set aside. (b) That the findings given by the Cardiologist, Associate Professor, Department of Cardiology, IGMC, Shimla, with respect to the medical fitness of the petitioner for the post of Constable (Driver) ITBP may kindly be taken into consideration and accepted; or (c) Alternatively, if the relief as sought for in clause (b) of the relief clause, supra refused, the respondents may kindly be directed to constitute the independent medical board for the medical examination of petitioner and to look into his medical fitness for the post of Constable (Driver) ITBP afresh. (d) That if the relief sought for in sub-clause (a) and (b) of the relief clause supra accepted in that event the respondents may be directed to consider the case of petitioner for the appointment of post of Constable (Driver) as detailed in the petition. 2. The respondents vide its advertisement dated 23.01.2018 invited online applications for the post of Constable (Driver). The petitioner participated in the same and after qualifying the Physical Standard Test/Physical Efficiency Test was shortlisted for a Detailed Medical Examination (for short 'DME'). The petitioner appeared for the DME on 17.09.2021, however, his candidature was rejected on medical ground of Hypertension and Tachycardia against which the petitioner applied before the Review Medical Examination (for short 'RME'). The request of the petitioner was acceded to as per the guidelines for the Review Medical Examination (RME) issued vide Office Memorandum dated 31.05.2021 and the Review Medical Examination was conducted on 22.09.2021, wherein again it was declared that the petitioner was unfit for being appointed to the post of Constable (Driver) on the ground of Hypertension and Tachycardia and Dyslipidemia. However, the petitioner thereafter sought independent medical opinion from the IGMC, Shimla, in which it was opined that the petitioner was medically fit to hold the post in question. 3.
However, the petitioner thereafter sought independent medical opinion from the IGMC, Shimla, in which it was opined that the petitioner was medically fit to hold the post in question. 3. When the case came up before the Court on 26.04.2022, the Court after hearing the parties passed the following order:- The instant petition has been by the petitioner for grant of the following substantive reliefs:- “(a) That the findings of the Detailed Medical Examination (DME) and Review Medical Examination (RME) Board, Annexure P-6, may kindly be quashed and set aside. (b) That the findings given by the Cardiologist Associate Professor, Department of Cardiology, IGMC, Shimla with respect to the medical fitness of the petitioner for the post of constable (driver) ITBP may kindly be taken into consideration and accepted; or (c) Alternatively, if the relief as sought for in clause (b) of the relief clause supra refused the respondents may kindly be directed to constitute the independent medical board for the medical examination of petitioner and to look into his medical fitness for the post of Constable (driver) ITBP afresh. (d) That if the relief sought for in sub-clause (a) and (b) of relief clause supra accepted, in that event the respondents may be directed to consider the case of petitioner for the appointment of post of Constable (driver) as detailed in the petition.”The parties are ad idem that as far as the candidates, whose candidature had been rejected on the ground of hypertension/tachycardia, are concerned, those candidates are first required to be admitted/hospitalized by the Medical Board before a final opinion is given regarding the candidate’s fitness, as provided in the latest guidelines issued by the respondents vide Office Memorandum dated 31.05.2021 (Annexure P-8). The reply filed by the respondents is conspicuously silent on this aspect of the matter, even though, the respondents would maintain that they have followed the due procedure in its letter and spirit. Therefore, let a supplementary affidavit be filed by the respondents explaining therein as to when the petitioner was hospitalized by the Medical Board and the final opinion regarding the fitness of the petitioner was given after following due process. 4. The respondents have filed supplementary affidavit of the Deputy Inspector General (Administration). It shall be apt to reproduce para-3, which reads as under:- 3.
4. The respondents have filed supplementary affidavit of the Deputy Inspector General (Administration). It shall be apt to reproduce para-3, which reads as under:- 3. That the petitioner was declared unfit in Detailed Medical Examination (DME) for Hypertension and Tachycardia and reported before the Review Medical Examination (RME) Board on 18.09.2021 for Review Medical examination. He was evaluated for Hypertension and Tachycardia between 18.09.2021 to 22.09.2021 on day care basis and heart rate and blood pressure was checked multiple times and thorough investigation for Tachycardia and Hypertension was done. During evaluation his lipid profile was also deranged (S.Chol-261 (150-250), TGL 349 (60-170), VLDL (5-35). He had multiple grounds of rejection (Hypertension, Tachycardia and Dyslipidemia), Dyslipidemia is an endocrine disorder and ground of rejection in Medical Examination. 5. Now that the experts in the field have opined against the petitioner, the Court would not be justified in sitting over the opinion formed by the experts as an appellate authority more importantly, when there is no allegation of malafide. 6. In taking this view, we are duly supported and fortified by the judgment rendered by three Judges Bench of the Hon'ble Supreme Court in Vidhi Himmaty Katariya and Ors. vs. State of Gujarat and Ors. (2019) 10 SCC 20 , wherein in para-8, it was observed as under:- 8. Now so far as the submission on behalf of the petitioners that while denying admission to the petitioners the State Government and/or authorities have not considered the relevant parameters and have not considered that the respective petitioners are able to perform well is concerned, it is required to be noted that in the present case all the expert bodies including the Medical Board, Medical Appellate Board and even the Medical Board of AIIMS, New Delhi consisting of the experts have opined against the petitioners and their cases are considered in light of the relevant essential eligibility criteria as mentioned in Appendix ‘H’ – ‘Both hands intact, with intact sensation, sufficient strength and range of motion’. Therefore, when the experts in the field have opined against the petitioners, the Court would not be justified in sitting over as an appellate authority against the opinion formed by the experts – in the present case, the Medical Board, Medical Appellate Board and the Medical Board of AIIMS, New Delhi, more particularly when there are no allegations of mala fides. 7.
7. Similar reiteration of law can be found in the judgment rendered by Delhi High Court in Rakshit Yadav vs. University College of Medical Sciences & Ors., 2019 SCC OnlineDel 1092, the judgment of the Kerala High Court in S. Amina vs. State of Kearala & Ors. W.P. (C) No. 28457/2020, decided on 21.12.2020 and yet another judgment by the Division Bench of Delhi High Court in Alok Ranjan vs. National Medical Commission & Ors. W.P. (C) No.9933 of 2020, decided on 28.09.2021. 8. Thus, it can safely be observed that if the competent authority i.e. experts in the filed, has assessed the disability as well as suitability of the petitioner in accordance with the provisions of the regulations, then, obviously this Court is not expected to act as a further expert and sit in appeal over the opinion unless there is something glaring defect in the opinion so rendered by the experts, which is not the fact situation obtaining in the instant case. 9. Yet, it needs to be clarified that although the Courts are extremely loath to interfere with the opinion of the experts but there is nothing like exclusion of judicial review of the decision taken on the basis of expert opinion. What needs to be emphasized is that the opinion of the experts deserves respect and not worship and the Courts and other judicial/quasi-judicial fora entrusted with the task of deciding the disputes relating to premature release/discharge or other cases of the like matter, cannot in each and every case, refuse to examine the record of the experts for determining whether or not the conclusion reached by it is legally sustainable or not. 10. Judged in light of the legal position, it would be noticed that, it has specifically come on record in the supplementary affidavit that the petitioner was evaluated for Hypertension and Tachycardia between 18.09.2021 to 22.09.2021 on day care basis and heart rate and blood pressure were checked multiple times and thorough investigation for Tachycardia and Hypertension was done. During evaluation his lipid profile was also deranged (S.Chol-261 (150-250), TGL 349 (60-170), VLDL (5-35). He had multiple grounds of rejection (Hypertension, Tachycardia and Dyslipidemia), Dyslipidemia is an endocrine disorder and ground of rejection in Medical Examination.
During evaluation his lipid profile was also deranged (S.Chol-261 (150-250), TGL 349 (60-170), VLDL (5-35). He had multiple grounds of rejection (Hypertension, Tachycardia and Dyslipidemia), Dyslipidemia is an endocrine disorder and ground of rejection in Medical Examination. There is no material placed on record to even prima facie contradict those findings and even the report obtained from the IGMC is far too general and, therefore, cannot be relied upon. 11. In view of the aforesaid discussion and for the reasons stated above, we find no merit in this petition and the same is accordingly dismissed, so also pending applications, if any.