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2024 DIGILAW 1150 (ALL)

Praveen Kumar v. State of Uttar Pradesh

2024-04-29

J.J.MUNIR

body2024
JUDGMENT : J.J. MUNIR, J. 1. This writ petition has been instituted by an unsuccessful candidate for recruitment to the post of Constable Civil Police, Constable Provincial Armed Constabulary and Fireman in the direct recruitment of the year 2013. The petitioner prays that a mandamus be issued to the respondents to hold a medical examination for him by a Medical Board, who should review his medical fitness. He seeks this relief because the petitioner, after staking his candidature successfully through the various stages of recruitment process to the post of Constable Civil Police, Constable Provincial Armed Constabulary etc. in the Examination of 2013, failed the medical test. 2. The facts giving rise to this writ petition lie in a narrow compass. An advertisement was published by the Uttar Pradesh Police Recruitment and Promotion Board, Lucknow (for short, 'the Recruitment Board') for recruitment of 20,000 constables in the Uttar Pradesh Police Department vide Advertisement No. PRPB:1-1(28)/2013 General dated 14.03.2013. The respondents issued an application form along with a handbook of instructions online. The petitioner applied in response to the advertisement. The petitioner's application submitted online bore Application ID No. 2000007101011798. He was assigned candidate registration No. 1015921613. After the online submission of the petitioner's application form, he also submitted it manually to the Recruitment Board. The petitioner's application form was scrutinized and found in order. He was issued with an admit card, bearing roll No. 15631199. 3. The petitioner says that he passed his preliminary examination and then the main examination. He was then called for physical test, after the qualifying written examination. The petitioner appeared before the Recruitment Board and declared successful. The petitioner was then invited to the medical test by the Recruitment Board, the medical test being scheduled at the Medical Centre, Police Lines Bhinga, District Shrawasti. He was also asked to bring in all his documents shown in the admit card. The petitioner annexed to the writ a part of the list of selected candidates, which carries his name at Sr. No. 19107 and bears roll No. 1582433. Also on record is a copy of the call letter for the petitioner's medical examination to be done at the Police Lines, Bhinga, District Shrawasti. The petitioner appeared before Board at the appointed time and venue. No. 19107 and bears roll No. 1582433. Also on record is a copy of the call letter for the petitioner's medical examination to be done at the Police Lines, Bhinga, District Shrawasti. The petitioner appeared before Board at the appointed time and venue. However, he was not selected with the reason assigned, being 'due to low merit or absent in DV or failed in DV or unfit in medical'. A copy of the result of this medical examination is at Page No. 32 of the paper-book. It appears that the other categories of exclusion are not applicable and the petitioner was not selected because he was held medically unfit. 4. The petitioner says that contemporaneous in time, he also appeared for recruitment to the post of Head Constable Ministerial, 2013-14 in the Central Reserve Police Force, New Delhi (for short, 'the CRPF'). He was declared unfit in the medical test conducted by the Medical Officer. He filed an appeal before the Medical Board, which declared him fit. The CRPF Doctor had declared him overweight on 04.10.2014, and, therefore, unfit, whereas the Appellate Board on 23.12.2014 found his weight to be ideal and certified him fit. 5. It is pleaded on the basis of the opinion of the Review Medical Board constituted by the CRPF that the petitioner was medically fit, but illegally excluded by the respondents, though finally selected. The petitioner asserts that after receipt of the result of the Medical Examination, he submitted his representation dated 16.06.2015 to the Recruitment Board, requesting a direction to the concerned Medical Unit for a review medical examination to judge his fitness, but to no avail. The petitioner claims that he submitted another application dated 14.08.2015 to the Recruitment Board, praying a review of his medical fitness, which also did not yield result. It is averred that it is on account of the respondents' fault that the petitioner has been declared medically unfit and a fortiori unsuccessful in the examinations for recruitment to the Constable Civil Police, Constable Provincial Armed Constabulary etc. for the year 2013. 6. There is a vague allegation in paragraph No. 27 that the respondents have committed gross illegalities, irregularities and unfairness in the selection process of Constables in Uttar Pradesh They have done a pick and choose in selection and appointment of Constables. for the year 2013. 6. There is a vague allegation in paragraph No. 27 that the respondents have committed gross illegalities, irregularities and unfairness in the selection process of Constables in Uttar Pradesh They have done a pick and choose in selection and appointment of Constables. There is a case to the effect that the respondents' action in excluding the petitioner, though otherwise selected, is illegal, arbitrary and against the natural justice, which violate Articles 14 and 16 of the Constitution. 7. When this petition came up before the Court for the first time on 06.10.2015, the learned Standing Counsel was granted time to seek instructions, posting the matter for 15th October, 2015. From 06.10.2015 to 10.02.2020, it took all this time for the instructions to arrive from the State. On 10.02.2020, a notice of motion was issued granting time to the respondents to file a counter affidavit within three weeks. On 03.03.2020, three weeks' further was granted as no counter affidavit had been filed by then. On 19.10.2020, when the matter next came up before the Court, the Court granted three weeks' further time, but with the condition that in case no counter were filed, the Officer, representing the Recruitment Board, would appear in person. This led the second respondent to file a counter affidavit dated 03.12.2020, to which a rejoinder was filed on 16.07.2021. A supplementary affidavit was filed earlier by the petitioner on 16.11.2019. On 24.08.2023, the parties having exchanged affidavits, the petition was formally admitted to hearing, which proceeded forthwith. It was adjourned to 12.09.2023. It was heard finally on 03.11.2023, when judgment was reserved. 8. Heard Mr. Shashi Ranjan Srivastava, learned Counsel for the petitioner and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing on behalf of the State. 9. Before we proceed to examine the parties' case on merits, it would be apposite to briefly refer to the stand of the State in their counter affidavit. It is the State's case that the petitioner had qualified the written examination, participated in the scrutiny of documents and physical standard test in District Shrawasti, besides his medical fitness test. In the medical fitness test that he took, he was found suffering from 'knock knee'. The petitioner is said to have put his signatures to the report of the District Medical Board, which took the test. In the medical fitness test that he took, he was found suffering from 'knock knee'. The petitioner is said to have put his signatures to the report of the District Medical Board, which took the test. It is pleaded that in accordance with the recruitment/ selection rules, in force at the relevant time, the petitioner had the remedy of filing an appeal to the Divisional Medical Board, if he was dissatisfied with the District Medical Board's opinion. However, the petitioner did not avail the aforesaid remedy of appeal. The petitioner having been excluded in the medical examination, he is now, according to the respondents, precluded from participating further in the selection process. It is also pleaded that the documents relating to the petitioner's review medical examination done in the recruitment for the post of Head Constable Ministerial, CRPF, New Delhi, is not relevant to the present selection process. The opinion of the Medical Board at Shrawasti, being unappealed, is final and cannot be assailed. 10. In paragraph No. 4 of the rejoinder, it is pointed out that the petitioner having passed the medical fitness examination for the post of Head Constable (Ministerial), 2015-16, relating to the CRPF, the knock knee, reported by the District Medical Board in the Police Recruitment of 2013, is patently flawed, inasmuch as knock knee is a condition by birth and could not have been cured by the time the petitioner took his medical examination for the CRPF Recruitment. 11. Upon hearing learned Counsel for the parties, it is to be seen if the petitioner can be granted a mandamus to undertake his medical fitness examination all over again. The recruitment test to the post of Constable Civil Police, Constable Provincial Armed Constabulary and Firemen, on the basis of the advertisement dated 14th May, 2013, was held at a time when the selection process involved a physical standard test, physical efficiency test, a written test and a medical test. It appears that the petitioner failed the medical test, after succeeding in the rest of the tests. The preponderant authority in the matter of disturbing or re-evaluating the opinion of the Medical Board, associated with Police Recruitment, appears to weigh heavily against countermanding the opinion of the Medical Board, part of the selection process, unless it be actuated with mala fides or bias, duly pleaded and proved. The preponderant authority in the matter of disturbing or re-evaluating the opinion of the Medical Board, associated with Police Recruitment, appears to weigh heavily against countermanding the opinion of the Medical Board, part of the selection process, unless it be actuated with mala fides or bias, duly pleaded and proved. There has been almost consistent authority discouraging unsettling of opinion expressed by Medical Boards, part of the recruitment process in Police Selections of Constables etc., on the basis of medical opinion expressed outside the system. 12. This Court is of opinion that for the Court to have thought that way, one reason is the pragmatism of approach. Generally speaking, Police Recruitment Tests at the level of the Constables is a recruitment process that has not only a very large number of aspirants, but invariably a large number of posts also to fill up. If the process of selection were disrupted on opinions of Medical Boards, being revisited and substituted, on the basis of opinions of Doctors, expressed outside the system and then attempted to be corrected under a mechanism of Special Medical Boards, set up by judicial command, the process of recruitment in the large numbers involved, would get delayed. Also, the process of selection to the Police Force at the level of men and foot soldiers, who indeed the rank of the Police Constables represent, are required to be swiftly recruited in order to maintain the strength of the Force. A depletion of the Force or its strength cannot be afforded by the State, or so to speak, by the society itself. These appear to be the wider considerations in reposing faith in the judgment of the Medical Boards, that are part of the Police Recruitment Process. 13. There is one feature of this matter, which we think goes further against the petitioner, though the petitioner says that he has represented against the opinion of the District Level Board that declared him medically unfit. He did not appeal to the Divisional Medical Board, which in accordance with the rules at the relevant time, was an Appellate Authority to review the opinion of the District Medical Board. The relevant rules, that were applicable relative to the recruitment of the year 2013-14, were the Uttar Pradesh (Civil Police) Constable and Head Constable Service Rules, 2008. He did not appeal to the Divisional Medical Board, which in accordance with the rules at the relevant time, was an Appellate Authority to review the opinion of the District Medical Board. The relevant rules, that were applicable relative to the recruitment of the year 2013-14, were the Uttar Pradesh (Civil Police) Constable and Head Constable Service Rules, 2008. The petitioner not having elected to pursue his remedy of applying to the Divisional Medical Board, it may not be open to him to ask this Court in the exercise of our writ jurisdiction under Article 226 of the Constitution to constitute a different Board for him and review the Medical Board's opinion, that is part of the recruitment process. The pitfalls for the Court in relying upon the opinion of a Medical Expert outside the recruitment process to doubt the correctness of the Medical Board and ordering a different Medical Board to be constituted for an unsuccessful candidate, were pointed out by a Division Bench of this Court in Union of India through Ministry of Railway Board and others v. Parul Punia, 2016 (2) AWC 2009 , where it was held: “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. 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 v. State of U.P.), 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 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.” 14. The same principle was reiterated in the Bench decision of this Court in State of Uttar Pradesh through its Secretary, Ministry of Home Affairs, Government of Uttar Pradesh Lucknow and others v. Rahul, 2016 SCC Online All 2779, where it was observed: “6. These rules have been framed in exercise of powers conferred by section 46(2) and section 2 of the Police Act, 1861 and have statutory force and effect. The Rules specifically provide for the examination of a candidate by a medical Board before being finally approved for appointment and specify the parameters which are to be fulfilled for the purposes of a medical examination. The record before the Court indicates that the District Medical Board found the respondent to be medically unfit on 1 April 2015 on the ground that he suffered from a flat foot. The respondent was aggrieved by the rejection of his candidature. Hence, he filed an appeal on 1 April 2015 specifically referring to the ground of medical unfitness found by the District Board and sought a review before the Divisional Medical Board. We must note from the appeal which has been filed by the respondent (and which forms a part of Annexure-5 to the writ petition) that the contention of the respondent before this Court in special appeal to the effect that there was no medical examination in the first place is manifestly misconceived. There was a medical examination in which the respondent was found to be medically unfit and it is on that basis the respondent sought a review Medical Board on 1 April 2015. In the review medical Board also the respondent was found to suffer from a flat foot and was found unfit for the said reason. Against this determination, the respondent filed a representation on 8 April 2015. Significantly, the complaint which was filed before the Director General docs not contain any reference to a demand for illegal gratification. This issue was not raised at the first available opportunity and was raised only in the writ petition. Against this determination, the respondent filed a representation on 8 April 2015. Significantly, the complaint which was filed before the Director General docs not contain any reference to a demand for illegal gratification. This issue was not raised at the first available opportunity and was raised only in the writ petition. The respondent claimed that a demand for illegal gratification had been made from him when he appeared before the Regional Medical Board at Kanpur on 4 April 2015. This averment in paragraph 14, as the verification of the writ petition would indicate, is made on the oasis of a perusal of records and not on the basis of the personal knowledge of the respondent. This coupled with the fact that in the representation of the respondent dated 8 April 2015, he made no reference to any illegal demand of gratification would be sufficient to hold that this averment is an effort in the writ petition to somehow sustain a ground of challenge. 7. 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.” 15. No doubt, this Court has not been held to be denuded of the power to constitute a Medical Board if on facts of a particular case that course of action becomes imperative. Here also, there is no kind of a bias or mala fide imputed to the Medical Board. This Court would have still thought of considering the petitioner's plea because the order of the Medical Board has not been placed on record by the respondents either, along with their return, and what the petitioner has annexed, is just a casual declaration that the petitioner is medically unfit. In the counter affidavit, the respondents have come up with a plea that the petitioner suffers from ‘knock knee’. In the counter affidavit, the respondents have come up with a plea that the petitioner suffers from ‘knock knee’. Elsewhere, when the petitioner appeared for the CRPF Examination, there is no opinion of him suffering from a ‘knock knee’, which is generally disqualifying in a selection to all kinds of Police Forces. These facts might have prevailed with the Court in ordering a fresh medical examination by a Board to be constituted for the purpose, but given the fact that the petitioner did not appeal to the Divisional Board, a remedy available to him under the rules, this Court is of opinion that no direction of the kind sought by the petitioner is merited. The representation, that the petitioner made to the second respondent, is certainly not an appeal to the Divisional Board, which had to be made in the prescribed proforma. Therefore, this is a case where the petitioner has not pursued his available remedy within the recruitment system to suit his rights. This fact becomes all the more relevant because this petition is not for a writ in the nature of mandamus, where exhaustion of all avenues provided before the Authority is one of the chief entitling features to the writ. 16. In the circumstances, this Court is not inclined to issue a mandamus in the terms the petitioner seeks. 17. In the result, this writ petition fails and is dismissed. 18. There shall be no order as to costs.