Calcutta High Court (Appellete Side)

Koushik Paul vs Union Of India & Ors on 3 March, 2021

03.03.2021
Item No. 15
Ct. No. 04
PG


                                   M.A.T. 83 of 2021
                                          With
                                I.A. no. CAN 1 of 2021
                                            r




                                   Koushik Paul
                                         Vs.
                                Union of India & Ors.


              Mr. Victor Chatterjee
              Mr. Barnamoy Basak......for applicant/appellant

              Mr. Ashok Prasad.......for respondents

On 22nd February, 2021 we had said as

follows:

"Mr. Prasad, learned advocate appears on behalf of respondents/Union of India. He prays for adjournment to produce before Court either policy document or written instruction. Mr. Chatterjee, learned advocate appears on behalf of applicant/appellant and submits, the recruitment process will end.

Respondents are on notice and this Court will not allow them to frustrate purpose of the appeal. List on next Monday i.e. 1 st March, 2021."

Mr. Prasad hands up his instructions and

enclosures thereto, signed on 13 th February, 2021 by

the Assistant Commandant. What is relevant from it

is that there is reference to, inter alia, the following:

"E. Review medical examination (RME): Ordinarily there is no right of appeal against the findings of the Recruiting Medical Officer or Initial Medical Examination. If any Medical Certificate is produced by a candidate as a piece of evidence about the possibility of an error of judgment in the decision of Initial Medical Board/Recruiting Medical Officer, who had examined him/her in the first instance i.e. DME, an appeal can be accepted.

Such Medical Certificate will not be taken into consideration unless it contains a note by the

Medical Officer from Government District Hospital or above along with registration no. given by MCI/State Medical Council, to the effect that it has been given in full knowledge of the fact that the candidate has already been rejected and declared unfit for serving by CAPF Medical Board, or the recruiting medical officer. If the appeal of a candidate is accepted by CAPF Appellate Authority, his/her Review Medical Examination will be conducted by CAPF RME Board. The Decision of the CAPF's Review Medical Boards will be final. No appeal will be entertained against the finding of the second medical i.e. Review Medical Examination."

As per above extract, there must be a note by

the medical officer from Government District Hospital

along with particulars as required, to effect that the

certificate has been given in full knowledge of the fact

that the candidate has already been rejected and

declared unfit for service by CAPF medical board. One

of the certificates relied on by appellant is at page 85

of the stay application. It is a certificate dated 11 th

February, 2020. It certifies that appellant, a

candidate of Constable (GD) Exam-2018 in CAPFs,

had his photo and thumb impression appended as

duly attested at the hospital (Regional Institute of

Ophthalmology). Certifier says there is knowledge

that appellant had been declared medically unfit due

to visual acuity both eyes 6/9. The certificate also

contains opinion on error of judgment and certifies

good vision at 6/6.

Mr. Prasad relies on three judgments;

(i) Judgment dated 16th October, 2018 of a

Division Bench of Delhi High Court in Writ Petition

(Civil) no. 879 of 2018 (Abhilash Kumar and Ors

vs. Union of India and Ors.), paragraph 12,

reproduced below:

"12. The aforesaid Guidelines leave no manner of doubt that any person who has a defective vision or is colour blind, is ineligible for recruitment in the CAPF or Assam Rifles. In fact, if any person is wrongly recruited despite having the aforesaid defects, he is to be promptly removed from service as soon as the defect is noticed and appropriate disciplinary action for major penalty is required to be initiated against the Doctor who had declared him 'fit'."

(ii) Judgment dated 9th March, 2016 of

High Court of Judicature at Patna in Civil Writ

Jurisdiction Case no. 22281 of 2011 (Union of

India and Ors. vs. Vikash Kumar), paragraph 10

reproduced below:

"10. The argument of the Petitioner are required to be tested broadly on the principles laid down in the aforesaid judgments. The report of the experts of the Review Medical Board cannot be interfered with only because some doctor opined the other way. There is no allegation of bias or mala fide against any of the members of the Medical Board or the Review Medical Board. The conclusions drawn by the Medical Board cannot be negated on the basis of a civil doctor, unaware of the physical standards required in the Para Military Forces. The opinion of the Board or the Review Medical Board cannot be said to be inchoate, casual, perfunctory or vague as there is no material to say so. Therefore, the High Court, in exercise of its power of judicial review should not have directed the medical examination by a doctor posted in the High Court and to order his appointment only on the basis of such report."

(iii) Order dated 21st November, 2016 of a

learned single Judge of, Mr. Prasad submits,

Allahabad High Court in Writ-A no. 54966 of 2016

(Shanti Swaroop Patel vs. Union of India and Ors.)

wherein was relied observation of a Division Bench of

that Court. The relevant passage and quote therein is

reproduced below:

"The Division Bench of this Court in the case of Union of India through Ministry of Railways v. Parul Punia bearing Special Appeal No. 968 of 2015 decided on 11.1.2016 has 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 relief 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.""

We require, in this case, additional evidence

for us to pass judgment since the certificate produced

from Government hospital conforms with the

requirement of information in the instructions relied

upon by respondents. The doctor certifying good

vision has attested to the identity of the person,

whose eyes were tested and given the certificate of

good vision possessed on full knowledge of a rival

contradictory medical examination stating visual

acuity 6/9. The requirements of identity as in Shanti

Swaroop Patel (supra) stands taken care of. The facts

in this case make views taken by paragraph 10 in