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2022 DIGILAW 671 (ALL)

Gagan Sharma v. State of U. P.

2022-04-29

MANJU RANI CHAUHAN

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JUDGMENT : Manju Rani Chauhan, J. Heard Mr. Seemant Singh, learned counsel for the petitioner and Mr. Ashish Singh Nagwanshi, learned Standing Counsel for the State-respondents. 2. By means of the present writ petition, the petitioner has prayed made following relief: (a) Issue a writ, order or direction in the nature of Mandamus directing the respondents to treat the petitioner has medically fit in the selection on the post of Constable Civil Police initiated vide advertisement dated 16.11.2018 issued by the Additional Secretary (Recruitment), Uttar Pradesh Police Recruitment and Promotion Board, Lucknow in view of Appendix-3 of Rules 15 (9) of Uttar Pradesh Police Constable and Head Constable Service Rules, 2015. (b) Issue a writ, order of direction in the nature of Mandamus directing the respondents to appoint the petitioner on the post of Constable Civil Police and also be sent for training on the post of Constable Civil Police, treating the petitioner to be not having any such physical deformity which has been notified under the Uttar Pradesh Police Constable and Head Constable Service Rules, 2015 and by the State Government, within stipulated period of time as fixed by this Hon'ble Court. (c) Issue any other suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (d) Award the cost of writ petition to the Writ Petition.'' 3. Before coming on the merits of the claim set up on behalf of the petitioner, Mr. Nagwanshi, learned Standing Counsel has raised preliminary objection to the maintainability of this writ petition by contending that the petitioner has earlier approached this Court by means of Writ-A No. 12672 of 2020 (Gagan Sharma v. State of U.P. and others). The said writ petition has been dismissed by a Writ Court vide judgment and order dated 3rd August, 2021. Learned counsel for the State-respondents, therefore, submits that this second writ petition nearly for the same relief cannot be entertained by this Court and the same is liable to be dismissed on this ground alone. The proper remedy available to the petitioner is to file a recall/modification application in the said writ petition or file a special appeal against the order passed therein. 4. The proper remedy available to the petitioner is to file a recall/modification application in the said writ petition or file a special appeal against the order passed therein. 4. In the present writ petition, it is the case of the petitioner that an advertisement was issued by the Additional Secretary (Recruitment), U.P. Police Recruitment and Promotion Board, Lucknow i.e. respondent No. 3 dated 16th November, 2018 in respect Constable Civil Police and Constable PAC Direct Recruitment-2018. By the said advertisement, total 49568 posts were advertised, out of which, 31360 were advertised for the post of Constable Civil Police, whereas 18208 posts were advertised for the post of Constable Police Armed Constabulary. Pursuant to the aforesaid advertisement, petitioner applied under General Category. The petitioner qualified in all the stages of recruitment and ultimately, he was selected on the post of Constable Civil Police in the final select list issued by the respondent-authority vide notification dated 2nd March, 2020. Thereafter the petitioner was called for appearing in Medical Examination at Reserve Police Line, Bulandshahr, which was conducted by the District Medical Board, Bulandshahr, wherein he was declared medically unfit due to having cubitus valgus deformity, which means excess curve in the elbows. The petitioner also appeared in re-medical examination, which was conducted at Reserve Police Line, Meerut by the Regional Medical Board, Meerut and in the said re-medical examination, the petitioner was again declared medically unfit on the same deformity. Feeling aggrieved by the same, the petitioner approached this Court earlier by means of Writ-A No. 12672 of 2020 (Gagan Sharma v. State of U.P. and others), which was dismissed by a Writ Court vide judgment and order dated 3rd August, 2021, wherein the Writ Court relying upon the medical report of the petitioner, according to which the petitioner was examined by the Medical Board, which was duly constituted by the Chief Medical Officer, Bulandshahr and he was found medically unfit due to having excess angle in both elbows. 5. Learned counsel for the petitioner submits that it is no doubt true that for the same relief, as has been made in the present writ petition, petitioner filed Writ-A No. 12672 of 2020 (Gagan Sharma v. State of U.P. and others) but grounds taken in the present writ petition and in Writ-A No. 12672 of 2020 (Gagan Sharma v. State of U.P. and others) are different. The petitioner has filed the present writ petition on some new grounds which he has not taken in his earlier writ petition. Therefore, the present writ petition is maintainable. In support of this plea, learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the case of Madhvi Amma Bhawani Amma v. Kunjijutty Pillai Meenakshi Pillai, 2000 LawSuit (SC) 833, as well as the Full Bench Judgment of the High Court of Karnataka in the case of Abdul Razak Amjadulla Abusali v. State of Karnataka by its Secretary, Department of Home and others, 2017 LawSuit (Kar) 709. 6. New grounds pressed before this Court by the learned counsel for the petitioner are that in the Appendix-3 of Rule 16 (g) of the U.P. Police Constable and Head Constable Service Rules, 2015 (hereinafter referred to as the ''Rules, 2015''), which provides the deformities, for which the candidates are required to be medically tested, cubitus valgus deformity has been mentioned. Neither any notification has been issued by the State Government mentioning that the cubitus valgus is a deformity nor the respondent authorities had ever disclosed at any point of time to the petitioner about the same i.e. at the time of the medical examination conducted by the District Medical Board and re-medical examination conducted by the Regional Medical Board. So long as the cubitus valgus is not taken into as physical deformity, the claim of the petitioner cannot be rejected on account of the same. On the Cumulative strength of the aforesaid, learned counsel for the petitioner submits that in view of Rules, 2015, the claim of the petitioner is liable to be considered treating the petitioner to be medically fit in all aspects. On the other-hand, learned Counsel for the State-respondents submits that there is no provision of law to dispute the medical examinations of the petitioner which were conducted by teams of Doctors only on the allegation that in Rules, 2015, the cubitus valgus deformity has not been notified nor in any notification or Government Order of the State the said deformity has been notified. The candidature of the petitioner has rightly been rejected by the Medical Boards referred to above. Therefore, on merits also, no interference is required to be made by this Court in exercise of powers under Article 226 of the Constitution of India. 7. The candidature of the petitioner has rightly been rejected by the Medical Boards referred to above. Therefore, on merits also, no interference is required to be made by this Court in exercise of powers under Article 226 of the Constitution of India. 7. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition. 8. It is an admitted position between the parties that for the same relief as made in the present writ petition, the petitioner has already filed Writ-A No. 12672 of 2020 (Gagan Sharma v. State of U.P. and others), which has been dismissed by a Writ Court vide judgment and order dated 3rd August, 2021, however, in the said writ petition, according to the learned counsel for the petitioner, the grounds taken in the same are different from those, which have been taken in the present writ petition. 9. The issue of filing successive writ petition has been considered by the Apex Court time and again, accordingly it has been held that even if the earlier writ petition has been dismissed as withdrawn, Public Policy which is reflected in the principle enshrined in Order 23 rule 1 C.P.C., mandates that successive writ petition cannot be entertained for the same relief. (Vide M/s. Sarguja Transport Service v. State Transport Appellate Tribunal and others, AIR 1987 SC 88 ; Ashok Kumar and others v. Delhi Development Authority, 1994 (6) SCC 97 ; and Khacher Singh v. State of U.P. and others, AIR 1995 All. 338 ). 10. In Sarguja Transport Service (Supra), the Apex Court has specifically opined that in the instant case, the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. 11. 338 ). 10. In Sarguja Transport Service (Supra), the Apex Court has specifically opined that in the instant case, the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. 11. Even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2 rule 2 C.P.C. as has been explained, in unambiguous and crystal clear language by the Apex Court in Commissioner of Income Tax, Bombay v. T.P. Kumaran, 1996 (10) SCC 561 ; Union of India and others v. Punnilal and others, 1996 (11) SCC 112 ; and M/s. D. Cawasji & Co. and others v. State of Mysore and another, AIR 1975 SC 813 . 12. Similar view has been reiterated by the Apex Court in Avinash Nagra v. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534 and by the other Court in Uda Ram v. Central State Farm and others, AIR 1998 Raj 186 ; and M/s. Rajasthan Art Emporium v. Rajasthan State Industrial and Investment Corporation and another, AIR 1998 Raj 277 . 13. In the case of M/s. D. Cawasji & Co. etc. (Supra), the Apex Court observed as under : ''Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no reasons before the High Court in these writ petitions why they did not make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of the Courts. Therefore, the appellants could not be allowed to split up their claims for refund and file writ petitions in this piecemeal fashion. Avoiding multiplicity of unnecessary legal proceedings should be an aim of the Courts. Therefore, the appellants could not be allowed to split up their claims for refund and file writ petitions in this piecemeal fashion. If the appellants could have, but did not, without any legal justification, claim refund of the amounts paid during the years in question, in the earlier writ petitions, we see no reason why the appellants should be allowed to claim the amounts by filing writ petitions again. In the circumstances of this case, having regard to the conduct of the appellants in not claiming these amounts in the earlier writ petitions without any justification, we do not think, we would be justified in interfering with the discretion exercised by the High Court in dismissing the writ petitions which were filed only for the purpose of obtaining the refund....in view of the above, the petition is liable to be dismissed as not maintainable and it is dismissed accordingly....'' 14. Similarly, in the case of State of U.P. and another v. Labh Chand, AIR 1994 SC 754 , the Apex Court has held as under : ''This reason is not concerned with the discretionary power of the Judge or Judges of the High Court under Article 226 of the Constitution to entertain a second writ petition whose earlier writ petition was dismissed on the ground of non-exhaustion of alternative remedy but of such a Judge or Judges having not followed the well established salutary rule of judicial practice and procedure that an order of a Single Judge Bench or a Larger Bench of the same High Court dismissing the writ petition either on the ground of latches or non-exhaustion of alternative remedy as well shall not be bye-passed by a Single Judge Bench or Judges of a Larger Bench except in exercise of review or appellate powers possessed by it..... But as the learned Single Judge constituting a Single Judge Bench of the same Court, who has in the purported exercise of jurisdiction under Article 226 of the Constitution bye-passed the order of dismissal of the writ petition made by a Division Bench by entertaining a second writ petition filed by the respondent in respect of the subject-matter which was the subject-matter of the earlier writ petition, the question is, whether the well established salutary rule of judicial practice and procedure governing such matters permit the learned Single Judge to bye-pass the order of the Division Bench on the excuse that High Court has jurisdiction under Article 226 of the Constitution to entertain a second writ petition since the earlier writ petition of the same person had been dismissed on the ground of non-availing of alternative remedy and not on merits.... Second writ petition cannot be so entertained, not because the learned Single Judge had no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same Court dismissing the earlier writ petition, redundant and nugatory although not reviewed by it in exercise of its recognized power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another Single Judge or a Division Bench of the same Court, it would encourage an unsuccessful writ petitioner to go on filing writ petitions after writ petition in the same matter, in the same High Court and for it brought up for consideration before one Judge after another. Such a thing, if is allowed to happen, it would result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such Court refusing to entertain a writ petition could be ignored by him with impunity and the relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court, for there could be no finality for an order of the Court refusing to entertain a writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court, for there could be no finality for an order of the Court refusing to entertain a writ petition. It is why the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject-matter respecting that the writ petition of the same person was dismissed by the same Court even if the order of such dismissal was in limine, be it on the ground of latches or on the ground of non-exhaustion of alternative remedy, has come to be accepted and followed as salutary rule in exercise of writ jurisdiction of the Court.'' (Emphasis added). 15. In the case of Burn & Co. v. Their Employees, AIR 1957 SC 38 , the Apex Court has held as under : ''That would be contrary to the well-recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be re-agitated. It is on this principle that the rule of res judicata enacted in Section 11, Civil P.C. is based. That section is, no doubt in terms in application to the present matter, but the principle underlying it, expressed in the maxim ''interest rei publicae ut sit finis litium'', is founded on sound public policy and is of universal application. (Vide Broom's Legal Maxims, Tenth Edition, page 218). 'The rule of res judicata is dictated' observed Sir Lawrence Jenkins C.J. in Sheoparasan Singh v. Ramnandan Prasad Narayan Singh, 43 Ind. App. 91: ILR 43 Cal. 694: ( AIR 1916 PC 78 ) (C), by a wisdom which is for all time.'' 16. Therefore, in view of the above referred judgments, it is abundantly clear that even if the provisions of the Code of Civil Procedure are not applicable in writ jurisdiction, the principle enshrined therein can be resorted to for the reason that the principles, on which the Code of Civil Procedure is based, are founded on public policy and, therefore, require to be extended and made applicable in writ jurisdiction also in the interest of administration of justice. Any relief not claimed in the earlier writ petition should be deemed to have been abandoned by the petitioner to the extent of the cause of action claimed in the subsequent writ petition and in order to restrain the person from abusing the process of the Court, such an order/course requires not only to be resorted to but to be enforced. 17. In the case of Dr. Buddhi Kota Subbarao v. K. Parasaran and others, AIR 1996 SC 2687 , the Apex Court has observed as under : ''No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions.'' 18. Similar view has been reiterated by the Apex Court in the case of K.K. Modi v. K.N. Modi and others, (1998) 3 SCC 573 . 19. In Tamil Nadu Electricity Board and another v. N. Raju Reddiar and another, AIR 1997 SC 1005 , the Apex Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand. 20. In Sabia Khan and others v. State of U.P. and others, (1999) 1 SCC 271 , the Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly. 21. In the case of Abdul Rahman v. Prasoni Bai and another, (2003) 1 SCC 488 , the Apex Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law. 22. 21. In the case of Abdul Rahman v. Prasoni Bai and another, (2003) 1 SCC 488 , the Apex Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law. 22. Thus, in view of the above, the second writ petition is not maintainable for issuing a direction upon the respondent authorities to treat the petitioner medically fit in the selection on the post of Constable Civil Police pursuant to the advertisement dated 16th November, 2018, as the earlier writ petition for the same relief stood dismissed vide order dated 3rd August, 2021, wherein a Coordinate Bench of this Court had found no error in the opinion of the medical board as also the appellate medical board. 23. The Full Bench Judgment of the High Court of Karnataka relied upon by the learned counsel for the petitioner in the case of Abudul Razak, Amjadulla, Abusali (Supra) is not applicable in the case of the petitioner. The Full Bench of the Karnataka High Court while deciding the point No. 1 in the said case has answered that that a second writ petition based on the very same grounds which were raised in the first writ petition assailing the order of detention is not maintainable on the principles of res judicata. However, the Full Bench has also clarified that a second writ petition assailing the very same detention order passed on fresh grounds or new grounds that were not available when the first writ petition was filed, is maintainable. When as matter of fact in the present case, the new grounds taken in the present petition with respect to the fact that the relevant rule does not take the cubitus valgus as a medical deficiency, were already available to the petitioner, while filing earlier writ petition being Writ-A No. 12672 of 2020. 24. The judgment of the Apex Court in the case of Madhvi Amma Bhawani Amma (Supra) is also not applicable in the case of the petitioner because the same issue was already been decided against the petitioner by a Coordinate Bench of this Court vide order dated 3rd August, 2021 and no new issue has been pressed in this second writ petition. 25. 25. In view of the aforesaid, this Court is of the opinion that this second writ petition is not maintainable and is liable to be dismissed on this ground alone. 26. This Court has also not found any good ground to interfere in the present writ petition on merits. Any Court of law or any person cannot express any opinion about a person whether he is healthy or unwell or what disease he has. It is the Doctor, who is an expert of that field, can diagnose the disease and give opinion about the same. 27. A learned Single Judge of this Court in the case of Diwakar Paswan v. State of U.P. and others, 2021(1) ADJ 454 , wherein the learned Single Judge has opined as follows: ''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. 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 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 v. State of U.P. held: ''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. 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.'' The Delhi High Court in a recent decision handed down in the matter of Km Priyanka v. Union of India, 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 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 v. Union of India, 2020 SCC Online Del 951;Jonu Tiwari v. Union of India, 2020 SCC Online Del 855; Nishant Kumar v. Union of India, SCC Online Del 808; and Shravan Kumar Rai v. 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.'' 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. 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. 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. 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'' (Emphasis added) 28. This Court, therefore, is in respectful agreement with the decision taken by the learned Single Judge in the case of Diwkar Paswan (Supra) and finds no good ground to entertain the present writ petition. 29. A Division Bench of this Court in the case of State of U.P. and others v. Bhanu Pratap Rajput, 2021(2) ADJ 451 , has observed as follows: ''16. The medical examination by the Medical Board consisting of medical experts under Rule 15(g) cannot be said to be inferior to the physical standard test conducted by a team of non-experts. Therefore, we find that the finding recorded by the learned Single Judge in the impugned judgment that the assessment of physical standard by the committee constituted under Appendix-2 to the Rules, 2015 is liable to be preferred over the determination made by the Medical Board in terms of the Appendix-3, is not sustainable. Opinion of a committee of non-experts under Rule 15(d) for physical test of a candidate cannot override the opinion of the team of experts, i.e. Medical Board under Rule 15(g) of the Rules.'' 30. This Court also agrees with the observations made by the Division Bench of this Court in the aforesaid case. 31. Lastly, this Court finds substance in the submission made by the learned Standing Counsel that this second writ petition filed for the same relief cannot be entertained by this Court. For same relief, second writ petition is not maintainable. This Court also agrees with the observations made by the Division Bench of this Court in the aforesaid case. 31. Lastly, this Court finds substance in the submission made by the learned Standing Counsel that this second writ petition filed for the same relief cannot be entertained by this Court. For same relief, second writ petition is not maintainable. The proper remedy available to the petitioner was to file a recall application in his earlier writ petition referred to above or to file a Special Appeal against the judgment and order passed in the said writ petition. 32. The present writ petition is devoid of merits, and, accordingly, dismissed. There shall be no order as to costs.