Yogesh Kumar vs State Of U.P. And 4 Others
2021 Latest Caselaw 9459 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 5872 of 2021
 

 
Petitioner :- Yogesh Kumar
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Virendra Singh Chauhan,Saif Ali
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

The present matter relates to the recruitment of Constable Civil Police and PAC 2018. On account of Bow legs, the petitioner was declared medically unfit and such situation impelled the petitioner before this Court.

The matter was entertained on 2.7.2021 and the Court has proceeded to direct the learned Standing Counsel with following observations:-

"Sri Virendra Singh Chauhan, learned counsel assisted by Sri Saif Ali, learned counsel for the petitioner submits that the petitioner was examined by the appeal medical board. However the result of the medical board has not been declared till date.

Attention is called to annexure 6 page 39 of the writ petition in this regard.

Instructions available with the learned Standing Counsel are inadequate and do not address the aforesaid submission.

Learned Standing Counsel to obtain fresh instructions in the matter.

Put up this matter in this list of fresh cases on 28.07.2021.

It shall be confirmed by the state authority as to whether the petitioner had in fact appealed the decision of the medical board and duly appeared before the appeal medical board for re-examination. "

Today, Ms. Uttara Bahuguna, learned Standing Counsel has supplied detailed instruction dated 2.8.2021 sent by Superintendent of Police, Kasganj indicating therein that the petitioner was also examined by the appellate medical board whereas he was declared medically unfit by the appellate medical board.

Dealing with the parameters of challenge to the opinion formed by a Medical Board, this Court in Diwakar Paswan vs. State of UP and 6 others [Writ-A No. 14444 of 2020 decided on 12.1.2021] held thus:-

"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."

In Special Appeal Defective No.70 of 2016 (State of UP and 2 ors vs. Rahul) decided on 03.2.2016 a Division Bench of this Court has also affirmed the similar order passed by learned Single Judge dated 15.9.2015 and dismissed the appeal with following observations:-

"In a recent judgment of this Court in Union of India through Ministry of Railways vs. Parul Punia Special Appeal No.968 of 2015 decided on 11.1.2016, this Court has emphasized the need for caution when candidates seek to question the correctness of the findings of a medical Board constituted under the recruitment process adopted by the authorities of the State, on the basis of a report obtained by the candidates. The Division Bench observed as follows:

"...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..."

Dealing with the parameters of the writ jurisdiction in such cases, the Division Bench observed thus:

"...Undoubtedly, in a suitable case, the powers of the Court under Article 226 are wide enough to comprehend the issuance of appropriate directions but such powers have to be wielded with caution and circumspection. Matters relating to the medical evaluation of candidates in the recruitment process involve expert determination. The Court should be cautious in supplanting the process adopted by the recruiting agency and substituting it by a Court mandated medical evaluation. In the present case the proper course would have been to permit an evaluation of the medical fitness of the respondent by a review medical board provided by the appellants. Otherwise, the recruitment process can be derailed if such requests of candidates who are not found to be medically fit for reassessment on the basis of procedures other than those which are envisaged by the recruiting authority are allowed. This would ordinarily be impermissible."

In the present case, we find absolutely no reasonable basis for the respondent to have invoked the jurisdiction under Article 226 for constituting a separate medical Board under the authority of the Principal of Motilal Nehru Medical College, Allahabad. In the interim order of the learned Single Judge, there was no safeguard to the effect that the medical examination would take place in the presence of a representative of the State to at least ensure that the issue of identity did not arise. But that apart, more fundamentally, the objection to the entire procedure which has been followed is that without any reasonable basis or justification, the recruitment process and the procedures which have been laid down have been supplanted under a judicial direction. This, in our view, would be impermissible.

We may also note that in an earlier judgment of a Division Bench of this Court in State of U.P. vs. Deepak Kumar Special Appeal Defective No.849 of 2015 decided on 17.12.2015 it observed as follows:

"Once such is the factual situation that there is self contained procedure, that has been provided for, being declared medically fit and there is a provision of review also in case an incumbent is declared medically unfit and here on two occasions respondent petitioner has failed to prove himself to be medically fit, then based on the report of a private medical practitioner no such mandatory directives could have been issued. That is totally outside the scope of scheme that has been provided for, in view of this, the order passed by the learned Single Judge cannot be subscribed by us. Candidate concerned, at no point of time, has imputed any motive to members of Medical Board that they have wrongly for extraneous consideration prepared wrong report."

We may also note that in the report of the Motilal Nehru Medical College, Allahabad which has been referred to in the impugned order of the learned Single Judge, it has been found that "there is mild collapse of medial arch leading to Grade-1 Flat foot". However, on a medical examination, the bio-mechanical function of foot was found to be intact. The report advised that the case 'can be considered fit as per the medical parameters set by a particular service for which the candidate opts for'. Thus even the report of the independent Board did not support the case of the respondent.

For the reasons which we have indicated, we are of the view that the special appeal would have to be allowed. The special appeal is, accordingly, allowed. The impugned judgment of the learned Single Judge dated 15 September 2015 is set aside. The writ petition filed by the respondent shall stand dismissed. A copy of this order be placed on the record of the writ petition.

There shall be no order as to costs."

Similar view has also been taken by this Court in the judgement dated 13.7.2021 passed in Special Appeal No. 109 of 2021 (State of U.P. and another Vs. Kuldeep Naiyar).

In view of categorical instruction given by the State, this Court finds no error in the opinion of Medical Board, as also the Appellate Medical Board. Consequently, the writ petition fails and is dismissed.

Order Date :- 4.8.2021

Jaswant