Ct./Gd Ugma Ram Godara vs Union Of India & Ors.
2010 Latest Caselaw 3397 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) No.651/2010 & CM No.1379/2010

                                           Date of Decision: 20th July, 2010

         CT./GD UGMA RAM GODARA                   ..... Petitioner
                       Through Mr. N.L. Bareja, Adv.

                     versus


         UNION OF INDIA & ORS.               ..... Respondent

Through Mr. Sameer Chaudhary, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Yes Digest?

GITA MITTAL, J (Oral)

1. By the present writ petition, the petitioner has complained of his

being declared medically unfit for appointment to the post of Sub-Inspector

(General Duty). The petitioner was enrolled on 6th March, 2003 in the

Central Reserve Police Force (`CRPF' hereafter) as the Constable (General

Duty). After completion of his training, the petitioner was initially posted

with 150 Battalion, CRPF and since then he is serving with the said

company. Between August, 2004 and October, 2004, the petitioner

suffered some ailment while on leave. As a result, the petitioner underwent

a surgical operation on 30th September, 2004 at the SMS Hospital, Jaipur for

a disease of PIVD, L3/4 and L4/6. The petitioner was discharged on 5 th

October, 2004 from the Hospital.

2. On a medical evaluation on 29th January, 2005, the petitioner was

placed in medical SHAPE-3 temporarily for a period of 24 weeks by the

medical officer of the CRPF. On 29th June, 2005, upon a fresh medical

evaluation, the petitioner was upgraded to medical category SHAPE-1.

It is undisputed that the petitioner continues to remain so ever since.

3. The petitioner has also pointed out that over this period, he has

remained posted in hard field areas including Jammu & Kashmir upto June,

2007 and thereafter has been posted in Nagaland in the North-East where

he is presently located as well. Admittedly, there is no complaint with

regard to the performance of hard duties in his entire career by the

respondents despite his having undergone the surgical procedure.

4. In the annual medical examination conducted upon the petitioner

from the years 2005 to 2008, the petitioner has been assessed as SHAPE-1

which is manifested from the health card maintained by the CRPF which has

been placed on record.

5. Learned counsel for the respondents has submitted that the medical

examinations reflect that the doctors have duly noted the fact that the

petitioner has undergone the afore-noticed surgery.

6. In June, 2009, the petitioner applied for undertaking the Limited

Departmental Competitive Examination for accelerated appointment to the

post of Sub-Inspector (GD). The petitioner was shortlisted for the same

pursuant to the scrutiny of his application. In September, 2009, the

petitioner has successfully undertaken all the tests which included the

physical endurance test followed by a written test, personality/psychology

test and qualified the same as per the laid down criterion.

7. A grievance has been made that in a medical examination conducted

on 5th October, 2009, the petitioner was declared medical unfit temporarily

for the same reason that he had undergone the afore-noticed surgical

operation. The petitioner's request for a review medical board was

accepted. The petitioner was medically examined by a review medical

board on the 7th October, 2009 which has also declared him medically unfit

on the ground that the petitioner was an operated case of PIVD.

8. Mr. N.L. Bareja, learned counsel for the petitioner has made a

vehement grievance that the petitioner's examination on 5th October, 2009

was by a medical officer in charge while the review was conducted by an

Ophthalmologist and a General Surgeon.

9. We find force in the contention of learned counsel for the petitioner to

the effect that neither the medical examination of the petitioner nor the

review medical examination has been conducted by specialities or experts

in the field which was required to examine a case of a person who had

undergone surgery for PIVD. There is also substance in the petitioner's

contention to the effect that he has been found fit for performance of his

duties in a hard area premised on his medical categorisation by the annual

medical check up. The petitioner's fitness stands endorsed by the fact that

the respondents have made no grievance at all with regard to his ability

and satisfactory performance of duty. It is also noteworthy that

appointment to the higher post of Sub-Inspector from Constable would

require enhanced leadership abilities and capabilities and decrease the

arduous nature of duties which a person may be required to perform and

may lower extent of physical endurance he may be required to undergo. In

any case, before a person is to be declared as medically unfit, the

respondents themselves have recognised the fact that he is required to be

medically examined by the experts and specialists in the field.

10. So far as the petitioner is concerned, the complaint again him would

require to be examined by an expert in the field of Orthopaedics or

neurology which has not been so done. The expert of the respondents who

is present accepts this position. The record shows that this has not been

done.

11. We have earlier had occasion to consider medical examination and

declaration of a person as medically unfit for appointment in similar

circumstances. In the judgment reported at 169 (2010) DLT 647 (DB)

Birendra Singh Vs. Union of India & Ors., we had referred to other

similar instances and held as follows:-

"26. We find that this Court had the occasion to consider a similar medical examination of a candidate by a Board which did not consist a specialist of the discipline which was involved. In the decision in Anish Barla v. Union Public Services Commission, reported at 131 (2006) DLT 170(DB) = 2006 VIII AD (Delhi) 622, appointment to the post of Assistant Commandant Group A in the Central Police Forces was involved. The petitioner had been rejected by the respondents on grounds of medical unfitness. The petitioner had assailed the rejection inter alia on the ground of the petitioner having been declared fit by a dermatologist of a recognised hospital of Delhi and that he had wrongly been declared medically unfit by a Board which did not include a specialist of the required field. Observations in para 4 of the judgment deserve to be considered in extenso which reads as follows:-

"4. It may be mentioned by us that the above order has been passed by us on the basis of the statement made by the Counsel appearing for the petitioner that the petitioner is now free from the aforesaid skin disease, and upon our noting with anguish from the record of the respondent that although the petitioner was held unfit for appointment on the ground of inveterate skin disease, none of the members of the Medical Board who had thus disqualified the petitioner had any experience in dermatology. This is, to say the least, most unfortunate and we record our disapproval of the manner in

which the case of the petitioner has been dealt with by the respondent. We hope that the respondent will desist from committing such mistakes in the future and will bestow earnest consideration to such like cases since the very right to life and livelihood of a person may be adversely affected by the same."

27. It is apparent that despite this pronouncement made on 14.3.2006, the respondents have not paid any heed to the composition of the Board which examines the fitness of the candidates. It also shows that the respondents have not at all given any heed to the material facts of the case which have certainly a bearing on the fitness of the petitioner. Mere amputation of the little toe of the left foot by itslef may not necessarily render a candidate unfit for appointment to a particular post. Further the impact of declaring him as medically unfit may render him unfit for continuation in the post which he was occupying at the time of his medical examination."

12. It is noteworthy that this case related to Central Industrial Security

Force. Both Central Reserve Police Force with which the instant case is

concerned and the Central Industrial Security Force are part of the Central

Police Organization and would be governed by the same rules and

regulations. So far as certification of fitness is concerned, that would be by

a similar procedure of examination by the concerned specialists.

13. In view of the above, the challenge by the petitioner to the action of

the respondents in declaring him unfit deserves to be sustained. The

composition of the review medical board was not proper to declare the

fitness of the petitioner. The opinion of the respondents to declare the

petitioner medically unfit recorded on 5th October, 2009 & 7th October,

2009, has not been recorded by the medical experts in the concerned

specialty and cannot be relied upon for the purposes of denying

appointment to the petitioner.

14. In view of the above discussion, we hold that the petitioner is entitled

to relief in the present writ petition. However, certification of the

petitioner's fitness by a panel of proper experts is essential for appointment

to any post in the Central Police Organization. The fitness standards which

are applied by the defence force remain the highest. The specialists in

these forces would also be well experienced in fitness certification. No

grievance can be possibly made if the fresh examination of the petitioner is

conducted by such specialists. The same would further be in the interests

of expediency and independence in the decision making.

We accordingly direct as follows:-

(i) The orders dated 5th October, 2009 & 7th October, 2009 declaring the

petitioner as medically unfit for appointment to the post of Sub-Inspector

(GD) are set aside and quashed.

(ii) The parties shall appear before the Commandant of the R & R

Hospital, Delhi Cantt., New Delhi on 9th August, 2010 at 11.00 A.M. with

such record and on all dates appointed thereafter. The Commandant, R & R

Hospital, Delhi Cantt., New Delhi to constitute a Board of experts in the

required specialties to medically examine the petitioner and submit a

report of his medical fitness. The petitioner shall appear before the

Commandant with copies of all documents including the record of his

surgery and medical records thereafter till date which may be in his power

and possession. The respondents shall also produce before the Board the

complete medical record of the petitioner including his reports and his

annual medical examinations.

(iii) The respondents shall ensure that the petitioner is enabled to appear

before the Commandant of the R & R Hospital and participate in the board

proceedings on the above date and any other date which may be appointed

by them.

(iv) In case the required experts are not available in the R & R Hospital, it

shall be open for the Commandant to make a requisition of the experts

from any other facility of the Armed Forces in Delhi who shall be made

available to comply with the present directions.

(v) The report of the Board constituted by the Commandant, R & R, Delhi

Cantt. shall be submitted to the Director General, CRPF. Copy thereof shall

be furnished to the petitioner as well.

(vi) In case the petitioner's fitness is certified in the report, the

respondents shall forthwith take steps for appointing the petitioner as Sub-

Inspector (GD) with the consequential benefits with other candidates who

were selected as Sub-Inspector (GD).

(vii) Orders in terms of the above directions shall be passed within four

weeks of the receipt of the medical report from the Commandant, R & R

Hospital, Delhi Cantt., New Delhi.

(viii) In case the petitioner is still aggrieved by the orders passed by the

respondents, it shall be open to him to assail the same by appropriate legal

proceedings.

The writ petition and application are allowed in the above terms.

Dasti to parties.

GITA MITTAL, J

J.R. MIDHA, J JULY 20, 2010 aa