Paritosh Mandal & Ors vs Union Of India & Ors
2022 Latest Caselaw 8564 Cal

   10
21.12.2022
   S.D.

                                      W.P.A. 27584 of 2022

                                     Paritosh Mandal & Ors.
                                               Vs.
                                      Union of India & Ors.

                    Mr. Ranojoy Chatterjee
                                                             ..For the Petitioners
                    Mr. Debapriya Gupta
                                            ..For the Respondent Nos. 1 to 5

The petitioners were selected in the written

examination held for direct recruitment of different Groups 'B'

and 'C' posts of the Border Security Force (in short, "BSF") of

the Water Wing Examination, 2022. The petitioners were

successful in the PST (Physical Standard Test) and PET

(Physical Efficiency Test). Thereafter, the petitioners were sent

for Detailed Medical Examination (DME).

In the Detailed Medical Examination dated November

16, 2022, the petitioner no. 1 was held to be 'unfit' because of

the following reasons:-

(i) Flexion deformity of middle finger of Right hand

(ii) Carving angle of both hands

(iii) Hypertrophy of turbinates

(iv) Waking abnormality

In the Review Medical Examination held on November

22, 2022, the petitioner no. 1 was held 'unfit' for the following

reasons:-

1. Reason of Medical Unfitness : Flexion deformity of right-middle Finger and left ring Finger Carrying angle of both hands Hypertrophy of turbinate Walking abnormalities.

2. Brief of Review Medical Examination & Finding thereof : Flexion deformity of right middle Finger and left ring Finger

3) Final Opinion :Carrying angle WNL Turbinate WNS Walking abnormal - Normal

(b) UNFIT on account of: UNFIT due to Flexion deformity of right middle Finger and left ring Finger [Disled interphalangeal joint]

The petitioner no. 2 was held 'unfit' in the DME dated

November 17, 2022 for the following reasons:-

(i) Tachycardia

(ii) High blood pressure

In the RME dated November 20, 2022, the petitioner no.

2 was held 'unfit' for the following reasons:-

1) Reason of Medical Unfitness : (1) tachycardia

(2) high blood pressure

2) Brief of Review Medical Examination & Finding thereof :

Blood pressure and pale -

WNS (Recordings attached)

3) Final Opinion : Echocardiography shows regurgitation of mitral valve and tricuspid valve

(b) UNFIT on account of : UNFIT, regurgitation of mitral valve and tricuspid valve on echocardiograph.

In the DME held on November 17, the petitioner no. 3

was held 'unfit' for the following reasons:-

              (i)     Stammering
              (ii)    Spinal deformity
              (iii)   Tattoo

In the RME held on November 23, 2022, the petitioner

no. 3 was held 'unfit' for the following reasons:-

              1)      Reason of Medical Unfitness:

                                  1) Stammering
                                  2) Spinal deformity
                                  3) Tattoo on Forehead in
                                   between eye brow

              2)      Brief of Review Medical Examination

& Finding thereof : (1) Stammering present speech therapy adulated [Dentist opinion attached] (2) No spinal deformity [Orthopaedist opinion attached] (3) tattoo on forehead

(b) UNFIT on account of : UNFIT (1) Stammering (2) tattoo on forehead

The petitioners claim to have examined themselves at

IPGMER and SSKM Hospital Centre, Department of Health

and Family Welfare, Government of West Bengal where they

have been held to be 'fit' for work.

Mr. Chatterjee, learned counsel appearing on behalf of

the petitioners submits that since the petitioners have been

held to be 'fit' for work, they should be reviewed by an

independent authority as regard to the reasons for being

declared 'unfit' by the respondent authorities.

He relies on the judgments/orders passed by the

Hon'ble Division Bench of this High Court in M.A.T. 344 of

2021, M.A.T. 1172 of 2022 and M.A.T. 1032 of 2022 in support

of his contentions.

Mr. Gupta, learned counsel appearing on behalf of the

respondents submits that the petitioners have already been

declared 'unfit' by the Review Medical Examination and,

therefore, there was no scope to send them for further

examination by an independent authority. He submits that a

Writ Court should not enter into the disputed questions of

fact. He relies on the decisions of Hon'ble Division Bench of

this Court in M.A.T. 45 of 2020 and M.A.T. 47 of 2020 in

support of his contentions.

Having considered the rival submissions of the parties

and materials placed on record, this Court is of the view that

since the petitioners have already got themselves examined by

a Government hospital, an opportunity should be given to

them to get themselves examined again by an independent

authority. This Court finds that justice will be sub-served if

the petitioners get themselves examined by an authority

conversant with various parameters to declare someone 'fit' or

'unfit' for the post for which the petitioners were selected with

regard to the issues raised by the RME when the tests were

conducted on them.

The petitioners are directed to get themselves examined

by Eastern Command Hospital, Kolkata.

The Registry of this Hon'ble Court is directed to serve a

copy of this order on the Superintendent of the Eastern

Command Hospital. The Superintendent is directed to

constitute a Board to have the petitioners medically examined

for the purpose of determining whether the petitioners are

medically 'fit' to work in the positions for which they have

applied in the BSF Water Wing Examination, 2022 having

regard to the issues raised by the RMEs as indicated in pages

38, 48 and 58 of the writ petition.

The entire exercise for conducting the medical

examinations is to be completed by four weeks from the date

of the communication of the server copy of this order duly

downloaded from the official website of this Court.

The Superintendent of the Eastern Command Hospital

shall file reports in the sealed covers in favour of the Registrar

General of this Hon'ble Court who in turn shall place the

reports before this Court on the adjourned date of hearing.

Needless to mention that the parties shall cooperate

with the Superintendent, Eastern Command Hospital, in any

manner required for the purpose of carrying out of the

medical examinations.

Let the matter appear for further consideration in the

combined Monthly List of February 2023 under the same

heading "Motion".

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

(Lapita Banerji, J.)