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2022 DIGILAW 86 (JK)

Shivam Sharma v. Union of India

2022-03-03

SANJEEV KUMAR

body2022
JUDGMENT : Sanjeev Kumar, J. Pursuant to an Advertisement Notification issued by the respondents, the petitioner was selected for the post of Constable General Duty (CT/GD) in CRPF and was offered appointment vide order dated 21.05.2014. The appointment offered to the petitioner was, however, subject to medical fitness and satisfying other terms and conditions. The petitioner reported on duty pursuant to an offer of appointment issued to him. While conducting the verification of his testimonials/dossier, the respondents noticed that the last medical examination of the petitioner was conducted on 22.10.2011, the validity whereof had expired. He was, thus, again examined on 08.08.2014 and declared temporary unfit due to Anemia for a period of six weeks. After the expiry of six weeks, the respondents constituted a Medical Board and reexamined the petitioner on 18.11.2014. The petitioner was again declared medically unfit on account of Anemia and Nephrotic Syndrome. It is on the basis of this medical report, the appointment of the petitioner was cancelled vide order dated 25.11.2014 which is impugned in this petition. 2. It is the contention of the petitioner that vide communication dated 6th July, 2011, he was informed that he had been declared provisionally qualified for the Medical Examination Test (MET) on basis of his performance in the said examination. The petitioner was informed to report at the Frontier Headquarters BSF, Paloura Jammu on 08.08.2011 at 7:00 am for Medical Examination Test. During the said Medical Examination Test, the petitioner was declared unfit for three reasons given in the medical examination result of the petitioner. He was, however, given an option to file an appeal against the findings of the medical examination by submitting an application in the prescribed form supported by a medical certificate from the medical practitioners. The petitioner exercised that option and filed an appeal after getting himself medically examined from Dr. Sanjay Raina, Surgeon and Dr. R.K. Gupta, Physician. The appeal was accepted and the Review Medical Examination of the petitioner was conducted by a Board of Doctors of CRPF. On examination by the said Medical Board, the petitioner was declared fit to join his duties in terms of communication of the Review Medical Board dated 22.10.2011. Pursuant to the decision of the Medical Board, the petitioner was given offer of appointment on 21.05.2014. 3. On examination by the said Medical Board, the petitioner was declared fit to join his duties in terms of communication of the Review Medical Board dated 22.10.2011. Pursuant to the decision of the Medical Board, the petitioner was given offer of appointment on 21.05.2014. 3. It is argued by learned Senior Counsel, appearing for the petitioner that though the petitioner was declared fit by the Review Medical Board, yet he was again subjected to medical examination and was declared temporary unfit for a period of six weeks and thereafter, upon further examination, he was declared medically unfit and consequently, his appointment was cancelled. It is submitted that after the CRPF Authorities declared him medically unfit finally on 17.11.2014, the petitioner underwent treatment in the Post Graduate Institute of Medical Education and Research (PGI), Chandigarh where, after short duration medical treatment, he was declared fit to resume his duties in CRPF w.e.f 02.02.2015. Learned Senior Counsel submits that the petitioner approached the Authorities concerned with a certificate of fitness issued by the reputed medical institute, but the respondents refused to allow him to join his duties on the ground that his appointment had already been cancelled and, therefore, he could not be permitted to join, that too, on the basis of a certificate issued by the Civil Authorities/Doctors. 4. Per contra, learned counsel appearing for the respondents submits that the respondents have followed the procedure laid down in the office memos and the regulations regulating the recruitment of Constables in CRPF. It is submitted that, it is true that during the review medical examination conducted on 22.10.2011, the petitioner was declared fit and it is because of this medical certification, the petitioner was offered the appointment. It is argued that the offer of appointment given to the petitioner was provisional and subject to medical fitness and completion of other requisite formalities. It is submitted that since the earlier medical examination was conducted on 22.10.2011 and the same was valid only for a period of one year, as such, the petitioner was again subjected to medical examination on 08.08.2014 and was declared unfit due to Anemia for a period of six weeks. After completion of six weeks’ period, the petitioner was again medically reviewed, but the Doctors conducting the review medical examination, could not find any improvement in his deformity. After completion of six weeks’ period, the petitioner was again medically reviewed, but the Doctors conducting the review medical examination, could not find any improvement in his deformity. It is, thus, argued that in view of aforesaid position, there was no option left with the respondents, but to cancel the candidature of the petitioner for the post of CT/GD in CRPF which was done by them in terms of order impugned in this petition. 5. Having heard learned counsel for the parties and perused the material on record, I am of the view that the respondents have not treated the petitioner fairly. It is true that the appointment of a candidate as CT/GD is subject to meeting the physical standards and medical fitness prescribed by the respondents. Initially, when the petitioner was examined, he was declared provisionally qualified for the detailed medical examination test. The medical examination test was conducted on 08.08.2011 at Frontier Hqrs. BSF Paloura, Jammu. The petitioner was declared unfit due to three reasons indicated in the certificate issued by the CMO(SG) Commandant (Med) STC, BSF, Udhampur, J&K. The petitioner was given an option to get himself medically examined from the medical practitioners and if he is declared fit by the medical practitioners, to file an appeal before the respondents-Authorities. The petitioner got himself medically examined by the Civil Doctors and consequently, applied by way of an appeal to the respondents for holding the Review Medical Board. The appeal preferred by the petitioner, which was duly supported by the medical opinion of the Civil Doctors, was accepted and the petitioner was subjected to Review Medical Exanimation by a Board consisting of three doctors, namely Dr. Narinder Kumar, Dr. S.K. Rai and Dr. Gulshan Singh. All the three Doctors after examining the petitioner found him fit and issued the requisite certificate on 22.10.2011. It is on the basis of this certificate of fitness, the petitioner was given the offer of appointment on 21.05.2014. It is, however, not discernible from the record as to how and why it took almost two and a half year to complete the process and issue the offer of appointment to the petitioner. Be that as it may, the offer of appointment was accepted by the petitioner. 6. It is, however, not discernible from the record as to how and why it took almost two and a half year to complete the process and issue the offer of appointment to the petitioner. Be that as it may, the offer of appointment was accepted by the petitioner. 6. It is equally true that in the offer of appointment, there is a clear stipulation that the appointment offered is subject to medical fitness in all respects. The relevant clause i.e clause (h) of offer of appointment dated 21.05.2014 is relevant and has been strongly relied upon by the respondents and, therefore, is reproduced hereunder: “Your appointment is subject to your medical fitness in all respect, which will be conducted by the appropriate medical authority of this department on your reporting to the Group Centre, CRPF, Bantalab (Jammu) Appointment order will only be issued on medical fitness and on satisfying other terms and conditions. However, there will be no medical examination within one year from the date of last medical examination if you report to join CRPF service by given date”. 7. It appears that since the review medical examination of the petitioner was conducted by the respondents in the year 2011 and, therefore, in view of stipulation No.(h) (supra), the petitioner was again subjected to medical examination. He was, however, found unfit, this time for Anemia and Nephrotic Syndrome. The appointment of the petitioner was, thus, cancelled. It may be pertinent to note that pursuant to the issuance of offer of appointment, the petitioner was medically examined on 08.08.2014 and he was declared temporary unfit for a period of six weeks. His was reexamined by the medical Board after the expiry of period of six weeks, but the Doctors did not notice any improvement in his deformity. This is how the petitioner was shown the door on 25.11.2014 being medically unfit to perform the job of a Constable General Duty in CRPF. It is interesting to note that, soon after cancellation of his appointment, the petitioner initially got treatment in the Government Super Specialty Hospital Jammu and thereafter in PGI Chandigarh. He was finally declared fit to resume his duties w.e.f. 02.02.2015. It is interesting to note that, soon after cancellation of his appointment, the petitioner initially got treatment in the Government Super Specialty Hospital Jammu and thereafter in PGI Chandigarh. He was finally declared fit to resume his duties w.e.f. 02.02.2015. The petitioner claims to have approached he respondents with a certificate of fitness issued by the PGI Chandigarh which assertion of the petitioner is not denied by the respondents, but the respondents refused to take him back in service. It is, thus, in these circumstances where the Doctors of BSF have not been able to take a definite opinion with regard to the medical fitness of the petitioner, the petitioner was initially declared unfit, but on appeal when the Review Medical Board was constituted in the light of opinion given by the Civil Doctors, he was found medically fit. Having been found medically fit, he was also given the offer of appointment. True it is, the offer of appointment was subject to the petitioner’s fitness and completion of all other requisite formalities. The condition No. (h) of offer of appointment reproduced hereinabove provides that if a candidate is given an offer of appointment, he will not be subjected to fresh medical examination, provided his last medical examination had been conducted within one year. Admittedly, in the instant case, the medical examination of the petitioner was conducted in the year 2011 and it was more than one year old. But, one would wonder as to why the offer of appointment was delayed for more than two years. That apart, when the petitioner was again subjected to medical examination post issuance of offer of appointment, he was declared temporary unfit on account of Anemia for a period of six weeks. He was reexamined after six weeks, but no improvement in his deformity was noticed by the Doctors. This became the reason for cancellation of his appointment. So far so good, but, since the deformity which, as per the Doctors of BSF, the petitioner was suffering from was temporary in nature, the respondents could have given him some more time to get cured of the ailment, but it was not done. In February 2015, he was fully recovered from the ailment and was declared fit to join his duties by one of the most prestigious Medical Institutes of the country i.e. PGI, Chandigarh. In February 2015, he was fully recovered from the ailment and was declared fit to join his duties by one of the most prestigious Medical Institutes of the country i.e. PGI, Chandigarh. The opinion of PGI ought to have been honored by the respondents or, at the most, based on the said opinion, the petitioner could have been subjected to fresh medical examination by the Board of Doctors of the respondents. This, however, was not done and the petitioner was not permitted to join back his duties. 8. Having regard to the nature of medical opinion tendered by the medical experts of the respondents from time to time, coupled with the fact that the ailment the petitioner was suffering from was temporary in nature, the respondents should have taken a compassionate view in the matter and offered him the appointment. I am aware that in case of conflict between the medical opinion by the Doctors of the Force and the Civil Doctors, it is the opinion of the Board of Doctors of Force that would prevail, for, the Doctors of the employer are in a better position to opine as to whether a particular candidate is fit for the job having regard to the nature of duties which a person selected/appointed is required to perform in the Force. However, as noted above, the facts of this case are entirely different. 9. For the aforesaid reasons, I feel inclined to allow this petition and accordingly, the same is allowed. The impugned order of cancellation of appointment of petitioner issued by the respondents is set aside. The respondents are directed to conduct the medical examination of the petitioner afresh by a Board of Doctors of the BSF and in case the respondents find the petitioner medically fit to perform the duties of CT/GD for which he was given the offer of appointment on 21.05.2014, he shall be given the appointment. The appointment of the petitioner, however, would be prospective. The fresh medical examination of the petitioner shall be conducted and the whole exercise shall be concluded within a period of two months from the date, a copy of this judgment is served upon the respondents.