Pavan Kumar vs Union Of India And 4 Others
2021 Latest Caselaw 3445 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 2129 of 2021
 

 
Petitioner :- Pavan Kumar
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Laloo Yadav
 
Counsel for Respondent :- A.S.G.I.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Petitioner is before this Court assailing the order impugned dated 20.3.2020 passed by the fifth respondent (Annexure No. 7 to the writ petition). Further request has been made to issue a mandamus commanding the respondents to accept Form No. 1, 2 & 3 of Constable (GD) Exam-2018 (form provided by the respondent no. 5) and Medical Fitness Certificate issued by Specialist Medical Officers of Govt. District Hospital (Annexure No. 6) which clearly mentions that petitioner has found medically fit for the post of Constable (GD) Exam-2018 and give him one opportunity of review medical examination test. Further request has been made commanding the respondent no. 3 to issue an E-Admit card for RME (according to Form No. 3 Constable (GD) Exam-2018.

Learned Standing Counsel for the Union of India has raised a preliminary objection regarding maintainability of the writ petition on the ground in similar circumstances, this Court has already dismissed Writ A No. 80 of 2021 (Manjay Kumar And Another Vs. Union of India And 3 Others) vide order dated 8.2.2021. The said order is reproduced herein below.

"Heard learned counsel for the parties and perused the record.

The present writ petition has been filed in the month of December, 2020 with the prayer that a direction be issued to the respondent to permit the petitioners to appear for Review Medical Examination for the post of Constable (GD) in CAPF, NIA, SSF and Rifleman (GD) in Assam Rifles Examination, 2018.

From a perusal of the writ petition, it is evident that the petitioner no. 1 and petitioner no. 2 had appeared for medical examination on 27.1.2020 and 28.1.2020; respectively, and they were rejected for being medically unfit. As per the procedure, the appeal for examination by the Review Medial Board had to be filed within a period of fifteen days as is clear from the perusal of Annuxure-5 to the writ petition, which is the report of the Medical Board.

In none of the paragraphs of the writ petition, it is indicated that the petitioners herein had filed appeal before the Review Medical Board within the time mentioned in the letter dated 29.1.2020.

This Court had granted time to the counsel for the petitioner to file supplementary affidavit by an order dated 20.1.2021. No supplementary affidavit has been filed till today.

However, the final result of the recruitment-in-question has been declared on 21.1.2021.

There is no explanation for approaching this Court with delay much after rejection of candidature of the petitioners on the ground of being declared medically unfit.

It is not possible for the Court to issue direction to the Selection Commission to conduct review medical examination of the petitioners, as the selection process is over.

The prayer, therefore, cannot be accepted. The writ petition is, accordingly, dismissed. "

Confronted with this situation, learned counsel for the petitioner has vehemently contended that thereafter the matter has been decided on merits subsequent to aforesaid judgment. He placed reliance upon judgment of this Court in Chunchun Kumari And 3 Others Vs. Union of India and 3 Others (Writ-A No. 2179 of 2021, dt. 18.2.2021), wherein, the writ petition was allowed in the light of judgment of this Court in Rupesh Kumar Vs. Union of India and 4 Others [2020(9) ADJ 555]. He fairly submits that there is certain delay in approaching this Court. Under Covid-19 pandemic situation, in most of the cases, the delay in approaching the Court has been condoned by the Hon'ble Apex Court as well as this Court. Therefore, in case, there is any delay, the same is bona fide. He submits that the present matter is squarely covered by the aforesaid judgment and the similar indulgence may also be accorded to the petitioner.

Heard rival submissions and perused the record as well as judgments relied upon by learned counsel for the parties.

The order dated 18.2.2021 passed in Chunchun Kumari (supra) is reproduced herein below.

"Heard learned counsel for the petitioners and the learned counsel appearing for the Union respondents.

The claim and candidature of the petitioners has been rejected by the respondents on the ground of them being found to be medically unfit. The Appeal which was preferred has not been transmitted to the Review Medical Board with the respondents noting in the order impugned that the certificate of the concerned Field Specialist in respect of petitioners 1 to 3 and the certificate of the concerned Ortho & ENT Specialist in respect of petitioner No. 4, had not been attached.

In Writ-A No. 314 of 2021, this Court had noticed the concession of the learned A.S.G.I. who had submitted that the issue raised stands concluded in light of the judgment rendered by a learned Judge of the Court in Rupesh Kumar v Union of India and 4 Others [2020(9) ADJ 555] in the following terms:-

"The above provision only contemplates that the medical certificate to be annexed with the appeal should be by the medical officer from Government District Hospital or above. It does not mention that the medical officer issuing the certificate should be a specialist in the field. However, in the communication sent to the petitioners informing them that they had been declared medically unfit, it was mentioned that in the event they apply for a review medical examination, they were required to submit medical certificate from a medical practitioner who should be specialist medical officer of Government District Hospital and above as per Form No.3. A sample Form 3 which is part of Writ Petition No.5049 of 2020 is reproduced below:-

As noted, the main provision in the Recruitment Scheme providing for the remedy of review medical examination only speaks of medical certificate from Government District Hospital or above, to be annexed with the appeal. The medical certificate annexed with the appeal shall be evidence of possibility of an error of judgment in the decision of initial medical board/recruiting medical officer, who had examined the candidate in the first instance. The doctor issuing the certificate is required to certify that it is being issued in full knowledge of the fact that the candidate had already been rejected and declared unfit for service by CAPF medical board, or the recruiting medical officer. He has to owe full responsibility of the facts certified by him. The object unambiguously was to prevent frivolous appeals being filed. If the documents were found in order, the appeal could be accepted. The acceptance of the appeal would not mean that the candidate has been declared or accepted to be medically fit. It would only pave way for constitution of a Review Medical Board by the respondents. The candidates would thereafter be subjected to medical examination once again by the Review Medical Board and only if he is found fit that he would be moving to the next stage of recruitment. The requirement that certificate should be by specialist medical officer of concerned field came to be incorporated for the first time in Form No.3 at the place where the doctor issuing the certificate has to sign, mention his name, and put his seal. In my considered opinion, the requirement of filing medical certificate alongwith the memo of appeal should be interpreted keeping in mind the object with which the said provision has been incorporated. It should not be overstretched, lest the very purpose of providing remedy of review medical examination may stand defeated. So interpreted, I am of the considered view that the Certificates annexed by the petitioners alongwith their appeal were sufficient to entertain the appeals.

... "

In view of the aforesaid it is conceded that the impugned orders would not sustain.

Accordingly, the writ petition is allowed. The impugned orders dated 29 June 2020 are hereby quashed and set aside. The respondents are directed to reconsider the candidature of the petitioners bearing in mind the principles laid in Rupesh Kumar. "

So far as the order dated 8.2.2021 passed in Manjay Kumar (supra), the prime consideration for rejection of the relief was two fold. Firsly, the laches and secondly, the final result of the recruitment-in-question was already declared on 21.1.2021, whereas, the order dated 18.2.2021 passed in Chunchun Kumari (supra), the same has been passed on merit of the case in spite of the fact writ of Manjay Kumar (supra) was already dismissed by coordinate Bench on 8.2.2021 but the reason best known to the respondents, the same has not been brought on record while arguing the matter in Chunchun Kumari(supra).Therefore, there is no reason or occasion to deviate from the view taken in Chunchun Kumari(supra), which is a latter judgment.

Accordingly, the writ petition is allowed in terms of Chunchun Kumari(supra). The impugned order dated 20.3.2020 is hereby set aside. The respondents are directed to reconsider the candidature of the petitioner bearing in mind the principles laid in Rupesh Kumar.

Order Date :- 15.3.2021

A.K.Srivastava