Khurshind Alam vs Uoi & Ors.
2009 Latest Caselaw 4799 Del

#10
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision :24th November, 2009

+                   W.P.(C) 9087/2008

        KHURSHIND ALAM                         ..... Petitioner
                     Through Ms.Jyoti Singh, Advocate

                    versus

        UOI & ORS.                               ..... Respondents
                         Through Ms.Preeti Dalal, Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?                   No
     3. Whether the judgment should be reported in the Digest? No

PRADEEP NANDRAJOG, J. (Oral)

1. Rule D.B.

2. Heard learned counsel for the parties.

3. The medical record pertaining to the petitioner directed

to be produced in Court vide order dated 16.11.2009 has been

produced and has been considered.

4. The medical record consists of 6 X-rays pertaining to the

lower limbs of the petitioner.

5. The facts required to be noted to adjudicate the dispute

may be stated briefly.

6. At a medical board constituted on 30.10.2007, the

petitioner was found with no physical infirmity but was found

to be suffering from hypertension and accordingly was placed

in the category of P2 (T-12). It means that the petitioner was

declared temporarily unfit for a period of 12 weeks pertaining

to the disability of hypertension and was accordingly placed in

the physical category 2.

7. The DPC met on 04.12.2008 to consider all those who

were eligible for being promoted from the post of Inspector to

the post of Assistant Commandant under CISF.

8. In view of the fact that the petitioner had been placed in

a low medical category, the DPC did not consider the

candidature of the petitioner.

9. A writ petition was filed by the petitioner which was

registered as WP(C) No.1485/2008 in this Court.

10. With reference to the Rules applicable, the petitioner

pleaded that in view of the fact that he was placed in low

medical category for a temporary period of 12 weeks , the DPC

had to consider the candidature of the petitioner.

11. What had happened was that before filing the afore-

noted writ petition, the petitioner had sought constitution of a

Review Medical Board. The result was that during the

pendency of the afore-noted writ petition, the findings of the

Review Medical Board which met on 14.03.2008 informed the

petitioner that he continued to be in the category of P2 (T-12)

but additionally found him to be suffering from appendages i.e.

a deformity of the right leg of a permanent nature and hence

was placed in the category A-2. We may note here that

category A-2 means category -2 in appendages.

12. The petitioner brought to the notice of the bench which

was seized of WP(C) No. 1485/2008 that it was unexplainable

as to how the petitioner who had joined service under CISF as

an Assistant Sub Inspector in the year 1976, could successfully

perform the physical endurance test and duties till the year

2008 without such a physical infirmity being detected. The

petitioner highlighted that in between, in the year 1989 he

earned promotion to the post of Sub Inspector and in the year

1991 earned further promotion to the post of an Inspector. The

petitioner highlighted the duties which he had performed and

thus urged that there was something more than which meets

the eyes in the decision of the Review Medical Board held on

14.03.2008.

13. The writ petition afore-noted was disposed of vide order

and judgment dated 02.04.2008. A mandamus was issued

which reads as under:-

"It is not necessary for us to go into this controversy. In so far as the present case is concerned, we may again highlight that the medical examination was conducted on 30th October, 2007. The petitioner was put in low medical category on temporary basis only in respect of P2 (Physical), however, the medical

board who examined the petitioner on 14th March, 2008 has not only retained that category but has additionally put him in low medical category (permanent) in so far as A-1 (Appenages) is concerned. Learned counsel for the petitioner had pointed out that the petitioner suffered from leg injury more than 18 years ago and during all this period of service with CISF, as far as that injury is concerned, petitioner has never been put in low medical category on temporary basis and such a categorization is with some ulterior motives. Without creating it as a precedent but keeping in view the aforesaid submission and the outcome of the medical examination conducted on 30th October, 2007, we are of the view that the petitioner be examined again by medical board consisting of independent doctors. Such examination is to take place within 30 days from the date of receipt of the order. In case petitioner is categorized in SHAPE I or even put in low medical category, but on temporary basis, review DPC would be convened to consider his case for promotion to the post of Assistant Commandant (Junior Administrative Officer) within three months thereafter and needless to say that the petitioner would be entitled to promotion only if he attains SHAPE I category. This writ petition is disposed of in the aforesaid terms."

14. In terms of the mandamus issued by the Division Bench,

an independent Board consisting of Dr.Satish Kumar, CMO

(SG), Dr.A.K.Mukhopadhya, CMO(SG) and Dr.Vijay Bhadur,

CMO(SG) was constituted. The board re-examined the

petitioner and on 30.06.2008 recorded that the petitioner was

no longer suffering from hypertension and accordingly was

entitled to be declared fit on account of said previous infirmity,

but with respect to his being placed in the category A-2 i.e.

pertaining to the deformity in the leg, gave an opinion in the

following words:-

"Pt. gave history of (R) leg injury in 1989 due to R.T.A. Clinical examination revealed limping from (R) leg. Angulation at middle 1/3 of leg. PEs cavus & atrophy of (R) tibialis anterior muscle, X- Ray of (R) leg revealed angulation of tibia at middle 1/3 & marked calcification."

15. The petitioner has rushed back to this Court for a second

time, inter-alia alleging that the findings of the second Review

Medical Board are malafide. It is urged that petitioner is given

to understand that none of the 3 doctors is an orthopedic

doctor.

16. It was urged before us on 16.11.2009 that it is just not

possible that the petitioner who has worked under CISF since

the year 1976 and has earned promotion and at each stage

was declared physically fit would be found to be suffering from

permanent disability as noted by the second Review Medical

Board.

17. Conceding that in the year 1989, the petitioner had

suffered bone injury of the right leg, it is urged that the injury

had not resulted in any permanent disability evidenced by the

fact that in the year 1989 the petitioner earned promotion to

the post of Sub Inspector and thereafter 2 years later earned

promotion to the post of Inspector and that he continued to

discharge his duties to the satisfaction of all without any

blemish.

18. It need hardly be emphasized, but we do so for the

reason, in the instant case it is necessary to do so, that bone

injury creates some problems with passage of time.

19. With reference to medical literature, we understand that

the deformity noted by the second Review Medical Board is on

alleged account of angulation of the right leg at the middle

1/3rd of the leg, resulting in the foot not being placed at the

normal position. This is conveyed by the words 'PEs CAVUS'.

This medical term conveys to us that when the foot is put on

the ground, the curvature at the sole becomes pronounce. The

result is that the muscles of the leg are not used as they are

not normally required to be put to use. Such muscles which are

not actively used results in 'atrophy'.

20. From the report, it is apparent that the X-ray of the right

leg has revealed angulation. The resultant is what has been

analyzed by the doctors during clinical examination.

21. The petitioner is not in Court and even if he was, we

would hardly be able to clinically examine him.

22. We have objective material before us in the form of the

X-Ray sheets of the right leg of the petitioner. We have

summoned the Chief Medical Officer attached to the Medical

Centre of the Delhi High Court who has gone through the X-

Ray sheets and informs us that the X-Rays of the right leg of

the petitioner reveals angulation of the tibia bone at the

middle 1/3rd .

23. In that view of the matter it becomes obvious that what

has happened in the instant case that as age caught on the

petitioner, a physical defect which remained un-noticed has

become pronounced and has got detected.

24. There being objective material before this Court to take a

decision with respect to the findings returned by the Medical

Board which met on 03.06.2008, notwithstanding the fact that

we have no clue as to what are the medical qualifications of

the 3 doctors who physically examined the petitioner, we see

just no scope to extend any benefit to the petitioner.

25. The writ petition is dismissed.

26. No costs.

27. The record has been returned to learned counsel for the

respondents.

PRADEEP NANDRAJOG, J

SURESH KAIT, J NOVEMBER 24, 2009 'hk'