Mohammad Kamaran Ahamad vs State Of U.P. And Others
2011 Latest Caselaw 4958 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
CIVIL MISC. WRIT PETITION NO.49040  OF 2011
 
Mohammad Kamaran Ahamad. 			....Petitioner
 
Versus
 
The State of U.P. and others.   			         .....Respondents
 
Hon'ble Rajes Kumar, J.

By means of the present writ petition, the petitioner is challenging the order dated 25.01.2011 by which the selection of the petitioner for the post of Constable has been rejected. The petitioner applied for the post of Constable in pursuance of the advertisement issued under the U.P. (Civil Police) Constables and Head Constables Service Rules, 2008 amended from time to time.

Learned counsel for the petitioner submitted that after the medical examination, he has been issued admit card and allowed to appear in the written examination, which has been cleared by him but the petitioner is not being sent for training. Now by the impugned order dated 25.01.2011, it is stated that the petitioner was not found physically fit and admit card has wrongly been issued to the petitioner and it should be returned.

On 26.08.2011 learned Standing Counsel was directed to seek the instruction and produce the record relating to the medical examination.

Learned Standing Counsel submitted that in the medical examination, the petitioner was found unfit and, therefore, the petitioner was not entitled to be appeared in the written examination while inadvertantly admit card has been issued, which should be returned and instead of returning back the admit card, the petitioner appeared in the written examination and, therefore, the petitioner is not eligible for the selection and his selection has been rightly cancelled.

Learned counsel for the petitioner submitted that the Board be directed to constitute a special Medical Board at Lucknow and the petitioner may be given an opportunity to appear in the medical test as directed by this Court in Writ Petition No.16288 of 2011, Rahul Kumar and others Vs. State of U.P. and others and other connected cases, decided on 29.03.2011.

I have considered the rival submissions. It is not in dispute that the petitioner was found unfit in the medical test. In the writ petition itself the result of the medical test is enclosed as annexure-6 to the writ petition. The petitioner was subjected to the medical test on 09.02.2010 and was declared unfit. In the said medical examination result, there is declaration on the part of the petitioner that he is satisfied with the medical examination process and its result. The signature of the petitioner is available there. Therefore, the petitioner was aware about the result of the medical examination. No further request has been made by the petitioner for re-medical examination. When the petitioner was aware about the result of the medical examination and in case if the admit card has wrongly been issued, the petitioner should have returned the same.

At this stage the petitioner is seeking a direction to the Board to constitute a Special Medical Board for giving opportunity of re-medical test, which can neither be entertained nor it is admissible under the rules.

Rule 3 (b) deals with ''appointing authority' and means the Superintendent of Police for constables and Head Constables in service. Rule 3 (c) deals with ''Board' and means the U.P. Police Recruitment & Promotion Board, established in accordance with the Government Orders issued from time to time in this regard. Rule 3 (h) defines the ''Head of the Department' and means the Director General of Police, U.P. Rule 3 (i) defines the ''members of service' and means a person substantively appointed under these rules or orders in force, prior to the commencement of these rules to a post in the cadre of the service. Rule 3 (m) defines the Selection Committee and means the selection committee constituted by the Board for the selection of candidates for appointment to the post of the service. Rule 3 (n) deals with year of recruitment. Rule 4 deals with Cadre of Service, giving therein strength of service of each category of posts. Rule 5 deals with Source of Recruitment. Rule 6 deals with Reservation. Part IV of the Rules deals with ''Qualifications'. Rule 7 deals with Nationality. Rule 8 deals with Academic Qualifications. Rule 9 deals with Preferential Qualification. Rule 10 deals with age. Rule 11 deals with character. Rule 12 deals with marital status. Rule 13 deals with physical fitness; same being relevant to resolve the controversy is being extracted below:

"13. No candidate shall be appointed to a post in the service unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties. Before a candidate is finally approved for appointment he shall be required to pass an examination by a medical board.

NOTE- The medical board shall also examine the deficiencies such as knock knee, bow legs, flat feet, vericose veins, distant and near vision, colour blindness, hearing test comprising of Rinne's test, Webber's test and tests for vertigo etc."

Rule 14 deals with determination of vacancies. Rule 15 deals with procedure for direct recruitment of constable; same being relevant is being extracted below:

"15. Procedure for direct recruitment of Constable.- The direct recruitment to the post of constable shall be made in the following manner :-

(a) Application :-

(i) a candidate shall fill the application Form for one District only. Regarding allocation of Examination center, the candidate may give more than one option. However, Board may allocate center other than those indicated by the candidate.

(ii) a separate booklet shall be attached with the application Form containing the information regarding educational qualification, age, and minimum qualifying standard for each category of Physical Standard Test, Physical Efficiency Test, Medical fitness, and minimum qualifying marks for written examination subject wise, copy of O.M.R. sheet for practice. and other important guidelines;

iii) the application Form shall be on the O.M.R sheet.

(iv) the space for candidates both left and right thumb impression shall be provided in the application Form;

(v) two attested photograph of the candidate be pasted at proper places, one photo on the application Form and the other on the admission card ;

(vi) application Form can be purchased on payment of the prescribed Fee from the notified Banks/Post Offices.

(vii) every application Form must be accompanied with the attested copies of the certificate of age, 10th, 12th and Graduation/Post Graduation, Sports Certificate, National Cadet Corps Certificate, Home Guard Certificate, Caste and Dependent of fredom fighters Certificate, as the case may be.

Duly filled up application forms should be submitted in the same Post Office/Bank from where it is so purchased.

(b) Call Letter: The Board will ensure that all the certificates, submitted by the candidate will be examined before the issuance of the call letter. If a certificate is shown to be submitted in the application Form but not found attached with it, the application Form of the candidate may be cancelled. After getting the application Form scanned through computer, computerised call letter will be issued to eligible candidates through the same post office from where application Form has been purchased.

The Board may also use any other appropriate means of sending call letters after a thorough consideration. Code/name/postal address/place of the examination centre along with the date and time of the Physical Standard Test, Physical Efficiency Test and medical examination will be clearly mentioned in the call letter. Documents which the candidates are required to bring for the examination will be clearly indicated in the call letters. Call letters should reach at least a week before the beginning of the examination. In case call letter is not received till a week before the date of beginning of the examination candidates may contact helpline, serial code of the application Form will have to be given in this regard. Duplicate call letter will be issued by the Board.

(c) Physical Standard Test: All eligible candidates shall appear for a physical Standard Test of a qualifying nature, the procedure of which is given in Appendix-1

(d) Physical Efficiency Test: The candidates who are declared successful in the Physical Standard test under rule 15 (c) shall be required to appear in a Physical Efficiency Test of a qualifying nature, the procedure of which is given in Appendix-2

(e) Medical Examination: The candidates declared successful in the Physical Efficiency Test shall be required to appear in a Medical Examination Test, the procedure of which is given in Appendix-3

(f) Written Examination: The candidates declared successful in Medical Examination Test shall be required to appear in Written Examination, the procedure of which is given in Appendix-4

(g) Final Select List: The Board shall prepare a Final Select List of candidates in order of their merit, keeping in view the reservation policy of the State.

The final merit list shall be published in website/notice board and news papers along with the marks obtained by the candidates, so they can check their marks obtained by them irrespective of the fact whether they are fail or pass. The outsourced agency shall develop the appropriate software on the basis of district and category wise merit list. The district and category wise merit lists shall be published accordingly. The outsourced agency which conducted the written examination will furnish the list of marks obtained by the candidates signed by its competent authority in a sealed cover along with the answer sheets to the Chairman of the Board."

Part VI of the Rules deals with Training, Appointment, Probation, Confirmation and Seniority. Rule 18 deals with appointment. Rule 19 deals with Training and Rule 20 deals with Probation. Rules 19 and 20 are also being excerpted below:

"18. Appointment.- Appointments are made strictly in accordance with the merit list following the rules and Government Orders regarding reservation of Scheduled Casts, Scheduled Tribes and other categories of special classes.

The verification of character and certificates shall be completed in one month. After that the Board will made available the list of selected candidates to the concerned Senior Superintendent of police/ Superintendent of police for issuing appointment letters.

Senior Superintendent of police/ Superintendent of police will issue the appointment letter with an instruction that the selected candidates shall join their duty/training within a month failing which the other candidates of the select list will be given the appointment.

Provided that any person appointed before the commencement of these rules to a post under the service and working on that post shall be deemed to have been appointed substantively under these rules and such substantive appointment shall be deemed to have been made under these rules.

19. Training.- During probation period the probationer is required to undergo training as prescribed by the State Government or Head of the Department.

20. Probation.- (1) A person on substantive appointment to a post in the service shall be placed on probation for a period of two years.

(2) The appointing authority may, for reasons to be recorded, extend the period of probation in individual cases specifying the date up to which extension is granted:

Provided that, save in exceptional circumstances, the period of probation shall not be extended beyond one year and in no circumstances, beyond two years.

(3) If it appears to the appointing authority at any time during or at the end of the period or extended period of probation that a probationer has not made sufficient improvement during the extended period of probation to the satisfaction of the appointing authority he may be reverted to his substantive post, if any, and if he does not hold a lien on any post, his services may be dispensed with.

(4) A probationer who is reverted or whose services are dispensed with under sub rule (3) shall not be entitled to any compensation.

(5) The appointing authority may allow continuous service, rendered in an officiating or temporary capacity in a post included in the cadre or any other equivalent or higher post to be taken into account for the purpose of computing the period of probation."

Part VII of the Rules deals with other provisions. Rule 26 clearly provides in respect of regulation of other matters; it being relevant is quoted below:

"26. Regulation of other matters.- In regard to the matters not specifically covered by these rules or special orders persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government Servants serving in connection with the affairs of the State."

Along with Rule 15, Appendix- 3 has been provided; same provides as follows:

"APPENDIX-3

Medical Examination for direct recruitment

Medical Examination Board.- The candidates who have passed the Physical Efficiency Test will undergo the Medical Examination at notified centers, (District Community Health Centre, District Hospital and Tehsil Community Health Centre) by medical board constituted by the Chief Medical Officer of the District. The number of candidates (not more than 50 in one day) for each medical board shall be determined in such a way that it will not affect the procedure and quality of the Medical Examination. The Medical Examination shall be completed within a week in the entire State. Due to the excess number of candidates if more time is required the Police Service Recruitment and Promotion Board may take a decision and decide the time required at its own level. The minimum requirement for qualifying for medical test to be displayed very prominently on Boards, District Community Health Centre, District Hospital and Tehsil Community Health Centre where ever the test is conducted before conducting the examination.

(a) The Doctors will examine the candidates in accordance with the Medical Manual. The medical board mainly examines the deficiencies of human body 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. Board may conduct other examination after obtaining the opinion of experts.

(b) The result will be displayed on board and declared on mike every day at the end of the day and also updated on the Board's website wherever possible.

(c) The members of the medical board who are found to give the wrong report willfully will be liable for criminal proceedings.

(d) The Medical Examination is only qualifying in nature and it has no effect on the merit list."

Rule 15 provides the procedure for direct recruitment of Constable. Clause (e) contemplates the medical examination. It provides that the candidates declared successful in physical efficiency test shall be required to appear in medical examination test, the procedure which is given in Appendix 3. Clause (f) provides that the candidates declared successful in medical examination test shall be required to appear in written examination, the procedure of which is given in Appendix 4. Clause (d) of Appendix 3 says the medical examination is only qualifying in nature and has no effect on the merit list.

In view of the above, the person can be allowed to appear in written examination in case he is declared successful in medical examination test. The medical examination is qualifying in nature. Unless a candidate is declared successful in medical examination, he can not be said to be qualified to appear in written examination.

Since the petitioner was declared unsuccessful in medical examination, the petitioner was not eligible to appear in written examination. Knowingly, that he was declared unfit, as stated above, he appeared in the written examination and, therefore, his selection was ab-initio illegal.

In Writ Petition No.6025 of 2011, Pradeep Kumar Sharma and others Vs. State of U.P. and others, on 11.02.2011 while entertaining the writ petition and passing an interim order, this Court has examined the Rules and after examining the Rules has observed that Rule 13 contemplates only one medical examination before the candidates are finally approved for appointment. Thus, the decision taken by the Training Centres to hold a fresh medical examination, prima facie, does not appear to be correct and the petitioner, who had cleared the medical examination, can not be restrained from under-going training for the reason that the second Medical Board did not clear them.

The aforesaid writ petition has been decided finally along with the other writ petitions. The leading case is Writ Petition No.16288 of 2001, Rahul Kumar and other Vs. State of U.P. and others.

In the aforesaid case, the issue involved was that the candidates were found declared fit and allowed to appear in the written examination and, thereafter, they have again been subjected to medical examination and declared unfit. The question was whether the Board can ask for the re-medical examination. This Court has held that Board can ask for the re-medical examination before the appointment in view of language of Rule 13.

After coming to the aforesaid conclusion this Court observed as follows:

"Now the next issue is being looked into. Here in the present case, in some cases on second occasion, the petitioners have been found medically unfit and in some cases, the petitioners are opposing the second medical examination, whereas in some cases, the petitioners were declared unfit in first medical examination, but in spite of the same, they have succeeded in appearing in written examination. As only issue is as to whether the petitioners are medically fit or not, and each one of them has been contending that he is medically fit and even the Board has taken decision to proceed on 28.01.2011 with further medical examination, who have been found unfit; in such a situation and in this background in respect of each one of the petitioners, the Board is directed to constitute a Special Medical Board at Lucknow giving opportunity to each one of the petitioners to undertake medical test and in the light of the report submitted by this Special Medical Board further follow-up action be taken into account, and decision be taken in accordance therewith. Such action be taken within eight weeks. The candidates, who have failed to to fulfill physical standard test as well as physical efficiency test, qua them, it is hereby directed that their appointing authority, who is vested with the authority to issue appointment letter, shall make arrangement for re-examination of physical standard test as well as physical efficiency test, within eight weeks from the date of receipt of a certified copy of this judgment and further follow-up action be taken accordingly."

Against the order dated 29.03.2011 Special Appeal No.555 of 2011 has been filed. The Division Bench has admitted the appeal and passed the interim order that in the meantime the orders dated 11.02.2011 and 24.02.2011 passed by learned Single Judge during the pendency of the writ petition shall remain in operation.

In the aforesaid writ petition, learned Single Judge has directed the Board to constitute a Special Medical Board at Lucknow giving opportunity to each one of the petitioners to undertake medical test and in the light of the report submitted by the Special Medical Board further follow up action be taken. Learned Single Judge has issued the said directions in respect of three categories; 1) in some cases where on first occasion the candidates were found medically fit but in the second occasion they were found medically unfit; 2) in some cases where the candidates were found medically fit in first medical examination and they were opposing the second medical examination; 3) in some cases where the candidates were declared unfit in first medical examination but inspite of the same, they have succeeded in appearing in written examination.

Without expressing any view on the issue, whether after the first medical test before the appointment, the candidates can be subjected to the second medical test or not, I am not able to endorse the view of the learned Single Judge in the case of Rahul Kumar Vs. State of U.P. and others wherein he has directed the Medical Board to constitute a Special Medical Board at Lucknow giving opportunity even to those candidates, who were declared unfit in first medical examination but inspite of the same they have succeeded in the written examination, for the reasons that if the candidate was declared unfit in the initial medical examination, he was not eligible to appear in the written examination. His appearance in the written examination is ab-initio illegal.

In view of the above, the writ petition fails and is accordingly, dismissed.

Dt.30.09.2011

R./