Shiv Shankar vs Union Of India & Anr
2010 Latest Caselaw 2391 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                CM No.1276-1277/2010 & W.P.(C) 3981/2000

%                                                Date of decision: 4th May,
2010

SHIV SHANKAR                                                   ..... Petitioner
                            Through: Mr. H.K. Chaturvedi, Advocate

                                     Versus
UNION OF INDIA & ANR.                                      .... Respondents
                            Through: None.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may
       be allowed to see the judgment?                  No

2.     To be referred to the reporter or not?           No

3.     Whether the judgment should be reported          No
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The writ petition was dismissed for non prosecution on 17th July, 2009.

The petitioner applied for restoration and for condonation of delay in applying

for restoration. Notice of the said applications was ordered to be issued to the

respondents. On the last date, final opportunity was granted to the petitioner to

serve respondents with notice of applications. The process fee filed by the

petitioner is again under objections. The respondents remain unserved and none

appears on their behalf. Though in terms of the earlier order, the applications are

liable to be dismissed for the reason of petitioner having failed to serve the

respondents but the writ petition has also been considered on merits.

2. The petitioner had applied for the post of Clerk in the Physically

Handicapped category. Though the petitioner was declared successful in the

written examination conducted for the said purpose but the disability certificate

furnished by the petitioner was not found satisfactory and the petitioner was

asked to appear before a Medical Board at Safdarjung Hospital. The Medical

Board did not recommend the "physically handicapped" status for the petitioner.

The petitioner represented against the same and the certificate issued by the

Medical Board of the Safdarjung Hospital was re-examined and was re-

confirmed. Aggrieved therefrom the present petition was filed.

3. The petitioner in the petition has made certain allegations against the

Doctors of Safdarjung Hospital constituting the Medical Board. This Court

before issuing notice of the petition called upon the petitioner to file a further

affidavit in that respect and the Doctors constituting the Medical Board were also

impleaded as parties to this writ petition. It was also clarified that if the

allegations of mala fide made by the petitioner against the said Doctors are found

to be not true, the petitioner will have to bear the consequences thereof. The

counter affidavits have been filed by the respondents thereafter. It has inter alia

been stated in the counter affidavits that the petitioner is now also beyond the

maximum age at which he could have been absorbed in service. Rule was issued

in the petition on 15th October, 2003.

4. It has been put to the counsel for the petitioner as to how this Court in the

exercise of writ jurisdiction can go into the disputed questions of whether the

petitioner comes within the disability status or not particularly when the Medical

Board constituted for the said purpose has voiced against the petitioner on two

occasions. The counsel for the petitioner has fairly stated that the said question

cannot be gone into in this proceeding. It is not possible for this Court to

conduct an enquiry in this regard.

5. No merit is found as such in the petition also. Though this Court had

earlier ordered that in the event of the allegations of the petitioner against the

Doctors constituting the Medical Board are found incorrect, the petitioner will

have to bear the consequence thereof but the counsel for the petitioner on behalf

of the petitioner, without prejudice to the rights and contentions of the petitioner

to have his disability proved before appropriate forum, tenders an apology for the

allegations made against the Doctors constituting the Medical Board. In view of

the said apology, it is not deemed expedient to take any further action against the

petitioner.

6. The writ petition is thus dismissed. Parties to bear their own costs. The

petitioner shall be at liberty to prove his disability before appropriate forum.

RAJIV SAHAI ENDLAW (JUDGE) 4th May, 2010 gsr