Prafull Kumar Singh vs Union Public Service Commission & ...
2012 Latest Caselaw 5080 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision : August 28, 2012

+                      WP(C) 5301/2012

       PRAFULL KUMAR SINGH                      ....Petitioner
                Represented by: Mr.Rajeev Tiwari, Advocate
                                Mr.Sanjeet Trivedi, Advocate.

                                versus

       UNION PUBLIC SERVICE COMMISSION
       & ANR.                                ... Respondents
                Represented by: Mr.Naresh Kaushik, Advocate
                                for R-1.
                                Mr.Himanshu Bajaj, Advocate
                                for R-2.
       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

1. Since the last few days we have been receiving writ petitions in this Court pertaining to medical examination conducted by doctors in the medical cadre of Central Para Military Forces, and the issue being one of medical opinion, is not expected to be decided by Judges, for the obvious reason, the field of medicine and human fitness with reference to body diseases is not the province of Judges.

2. But, it would then be the duty of the medical experts to be clear in their opinion.

3. Issues have been coming up before us where archaic tools of evaluation are used ignoring latest tools available, and mere suspect cases, suspicion being based on archaic evaluation, have been found by us to be clear cases after persons were referred to the Army (R&R) Hospital, Dhaula Kuan

and the doctors there conducted proper examination, using latest diagnostic tools. In such cases we had highlighted the requirement of clearly identifying cases on either side of the borderline to decide on which side they fall. In each case we had found that the aggrieved persons had got themselves subjected to a proper medical examination at reputed Government Hospitals such as All India Institute of Medical Sciences, Safdarjung Hospital New Delhi etc. and expert doctors in the civilian hospitals had not only rendered an opinion to the contrary, but based on empirically evaluated material, had given reasons for their opinion; as against the doctors at the hospitals of Central Para Military Forces merely recording an opinion, sans any reasons.

4. On a short subject we are penning a few extra words so that the doctors working in the hospitals of Central Para Military Forces are instructed to not simply record their opinions pertaining to the medical unfitness, if certified by them, but to give reasons for the opinion so that when a matter is brought before a Court, the Judge can apply the 'Fry's Test'; the well- known test pertaining to an opinion on a subject of expert knowledge when requiring a judicial evaluation. The Fry's Test required the Court to see whether the opinion relates to a matter of science or special knowledge and is given by a person who is an expert in the field and lastly that the methodology applied to render the opinion is based on a theory or a hypothesis accepted by the experts in the field and that the said theory or hypothesis has been applied to the admitted facts.

5. Only yesterday, with reference to a small wound in the ear, where the opinion was that the person is unfit for public employment, we had to highlight that every physical deformity is not of a kind which renders a person incapable to serve.

Unless it is opined that the disability would hamper the discharge of service, mere identifying a disability is meaningless. We were constrained to remit the matter for further medical evaluation.

6. Instant case is another of the kind.

7. Subjected to a medical evaluation by the doctors of BSF, petitioner was found to be overweight by 3 kg which is obviously a temporary and a piffing infirmity: a simple fasting for two days is enough. But the one with which we are concerned is 5 - 6 superficial subcutaneous lumps detected on the body of the petitioner. Based thereon, opinion rendered is that the petitioner is unfit to be employed as an Assistant Commandant in a Central Police Force. The medical terminology for the superficial subcutaneous lumps is 'superficial lipoma'. But in what manner it would adversely affect the discharge of duties by an Assistant Commandant is not clear.

8. The petitioner has visited All India Institute of Medical Sciences where the doctor concerned has opined that superficial lipoma does not require the petitioner to be declared medically unfit.

9. The petitioner had also visited a reputed private hospital, Mata Chanan Devi Hospital at New Delhi where the Histopathologist did a biopsy of a fatty tissue taken from the body of the petitioner and simply recorded the diagnosis to be 'lipoma'.

10. Learned counsel for the respondents states that such kinds of lumps, turning cancerous is not unknown.

11. But cancer may strike at any time in life. We have all heard of benign lumps. We do not know whether the instant lumps are active or benign? This is the medical examination which ought to have been conducted by the doctors concerned.

Further, are they surgically correctible or are of a kind which would impair the discharge of duties by the petitioner as an Assistant Commandant? These were questions to be opined upon.

12. We dispose of the writ petition directing the respondents to subject the petitioner to a proper medical evaluation requiring the doctors to render an opinion whether the superficial subcutaneous lumps detected on the body of the petitioner are a physical/medical disability of a kind which renders petitioner unfit to be employed as an Assistant Commandant in a Central Para Military Force, and if the opinion is against the petitioner, to record the reasons for the same.

13. Needless to state known medical jurisprudence in the subject would be kept in mind by the doctors concerned. If the petitioner is found fit to be appointed as an Assistant Commandant, the respondents would process the case of the petitioner further. Since interviews are to be held in mid- September 2012 we direct compliance with the present decision within 10 days from today, meaning thereby the petitioner be intimated the date and the hospital concerned where he should report for further medical examination within a week from today.

14. No costs.

15. Dasti.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE AUGUST 28, 2012 dk