Deepak Kumar vs Union Of India & Ors.
2012 Latest Caselaw 1006 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    WP(C) No.8133/2011 & CM No.2004/2012

%                         Date of Decision: 14.02.2012

Deepak Kumar                                                   .... Petitioner

                       Through   Mr.A.K.Trivedi, Advocate

                                  versus

Union of India & Ors.                                       .... Respondents

                       Through Mr.Anuj Aggarwal, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

*

CM No.2004/2012

This is an application seeking condonation of 11 days delay in

filing the counter affidavit/reply to the show cause notice.

Issue notice to the non-applicant/petitioner. Mr. A.K.Trivedi,

Advocate, accepts notice.

For the reasons stated in the application, it is allowed and the

delay of 11 days in filing the counter affidavit / reply to the show cause

notice is condoned and the counter affidavit is taken on record.

The application stands disposed of.

WP(C) No.8133/2011

1. The writ petition is taken up for hearing with the consent of the

learned counsel for the parties.

2. The petitioner has prayed for a direction for the constitution of an

Independent Medical Board at the Army Hospital (R&R), Delhi Cantt., or

any other Govt. Hospital to re-examine the petitioner and if the

petitioner is found fit to consider his appointment to the post of

Constable (GD) in CPF and to declare the action of the respondents

declaring the petitioner as partially colour blind incorrect, in view of the

medical fitness given to the petitioner stipulating the absence of colour

blindness in the petitioner by two Govt./Civil Hospitals.

3. The petitioner had applied for recruitment to the post of

Constable (GD) in the Central Police Forces i.e. CISF under the OBC

category and he was allotted the Roll No.2201524886 and was issued

an admission certificate for appearing in the written examination on 5th

June, 2011. The petitioner appeared in the written examination and

was declared successful and was thereafter directed to appear for the

medical examination to be held on 21st July, 2011 at 103 RAF Bn,

Wazirabad, Delhi.

4. On the basis of the medical examination conducted by the

respondents, he was however, declared unfit on account of partial

colour blindness.

5. The petitioner, thereafter, got himself medically examined at

Dr.B.R. Ambedkar Hospital, Rohini, Delhi on 4th September, 2011 and

submitted an appeal on 7nd September, 2011 along with a certificate of

his fitness.

6. The petitioner asserted that he had sent his request for a

review/appeal medical board along with the medical fitness certificate,

however, he did not retain a copy of the same.

7. Since, the petitioner did not get any response from the

respondents, he got himself medically examined again at Sanjay Gandhi

Memorial Hospital, Mangolpuri, New Delhi on 1st November, 2011. The

said Hospital also held that the petitioner is fit and does not have

partial colour blindness. Thereafter, the petitioner has filed the present

writ petition praying for the constitution of an independent medical

board to re-examine the petitioner. The petitioner has also relied on the

decision of a Division Bench of this Court in the matter of Naresh

Kumar v. Union of India, WP(C) No. 3125/2011 relating to the Central

Reserve Police Force wherein it was observed that in 30 cases, the

candidates who were declared to be medically unfit by the CRPF, when

referred to the Army Hospital (R&R) twenty seven of them were found to

be fit. The Division Bench in the circumstances had directed the

Registrar of the Army Hospital (R&R) to constitute a board of specialist,

in order to examine the candidate and to render an opinion to the

Director General, CRPF and in case the report is found to be in favor of

the candidate, then to implement the entitlement of the said candidate

for the employment with the CRPF.

8. The writ petition is contested by the respondents contending,

inter-alia, that the petitioner was informed about the finding of the

medical board whereby he was declared to be suffering from partial

colour blindness and that the Form No. CAPF's (Constable (GD)/1) was

also issued to the petitioner for the submission of his appeal and the

medical fitness certificate seeking review medical examination.

According to the respondents, the petitioner did not submit his medical

certificate in the given prescribed format for appeal to seek a review

medical examination, therefore, the application of the petitioner was

rejected. The respondents also contended that a total of 120 such

applications were rejected as the same were not submitted according to

the prescribed format. The respondents have also given the summarized

details of the total number of applications received by the Appellate

Authority for seeking review medical examination.

9. The respondents emphasized that though the petitioner had

preferred an appeal before the Appellate Authority, however, the said

appeal was rejected as the petitioner did not submit his appeal in the

given prescribed format as it was without the medical certificate

specifying the medical fitness of the petitioner, issued by an authorized

medical practitioner.

10. This Court has heard the learned counsel for the parties in detail.

This is not disputed that the petitioner had submitted an appeal against

the finding of medical unfitness on account of partial colour blindness

as per the report of the medical board. The plea of the respondents that

along with the appeal, the petitioner had not submitted the requisite

medical fitness certificate in requisite format cannot be accepted as the

appeal of the petitioner for review medical board was not rejected on

this ground, nor such ground was communicated to the petitioner.

11. The respondents have produced a medical fitness certificate given

by the petitioner, a copy of which has been filed by the respondents as

Annexure R-2 which is in the Form No.CAPF's (Constable (GD)/3). The

certificate categorically stipulates that the concerned doctor was aware

of the fact that the petitioner had been declared medically unfit by the

medical officer in the combined recruitment of Constable (GD) in CAPF's

in the year 2011-12 due to partial colour blindness as he was allegedly

unable to read the green and red lines. The certificate further states

that in the opinion of the Senior Resident of Department of Eye, Dr.

BSA Hospital, GNCT Sector-6, Rohini, Delhi 85, this finding is on

account of error of judgment as the colour vision of the petitioner is

within the normal limit (WNL) as per Ishihara chart and that the

petitioner was declared medically fit for the said post after due

examination.

12. The respondents have also produced a copy of the communication

dated 20th October, 2011 stipulating that along with the Form

No.CAPF's, the civil doctor has not given any reason, nor has the fitness

certificate been annexed with the form. The respondents though have

contended that the said communication dated 20th October, 2011 had

been sent to the petitioner, however, nothing has been produced to

show that the said communication had indeed been issued to the

petitioner. The petitioner specifically denied that after he had applied

for the review medical board, he received any intimation from the

respondents. The petitioner rather contended that when he did not hear

anything from the respondents, he got himself medically examined

again from Sanjay Gandhi Memorial Hospital, Mangolpuri, New Delhi

on 1st November, 2011 and thereafter filed the present writ petition.

13. Though, the respondents have contended that the reason for

rejecting the appeal of the petitioner is that the medical fitness

certificate was not given in the prescribed format, however, a perusal of

the medical fitness certificate dated 13th December, 2011 submitted by

the petitioner clearly gives the reasons for the error in the judgment of

the respondents' medical board, as the petitioner's colour vision is

within the normal limit as per Ishihara chart, as endorsed by a certified

medical practitioner. The plea of the respondents that the medical

fitness certificate was not annexed by the petitioner is also negated by

the fact that the medical fitness certificate itself incorporates the

certificate of the medical fitness obtained by the petitioner which is duly

signed by Sh.Dimpy Kumar, Senior Resident, Department of Eye, Dr.

BSA Hospital, GNCTD Sector 6, Rohini, Delhi.

14. The allegation that the petitioner did not apply in the appropriate

format, relates to a procedure and unless otherwise mandated by the

language of the procedural law which makes the compliance of the

procedure mandatory, in such facts and circumstances, the procedure

has to be considered as directory. The right of the petitioner to have a

review medical board in view of the contradictory opinions of the other

medical specialist is not to be denied on such factors in the facts and

circumstances. There cannot be such a strict compliance so as to

completely negate the right of the petitioner to be examined by a review

medical board.

15. The essential conditions for a candidate to be examined by a

review medical board is that a candidate must get himself examined

from a medical practitioner and apply for an appeal/review medical

board along with the requisite fees within the time prescribed by the

respondents. The further condition is that the appeal is to be signed by

the candidate and the medical certificate is to be signed by the doctor.

16. The respondents had communicated the result of his medical

examination i.e. declaring him partially colour blind and unable to read

the green and red line by letter dated 31st August, 2011. The

respondents in the said communication dated 31st August, 2011 in para

2 had given the terms and conditions for filing an appeal against the

findings of the medical examination which are reproduced as under:

"2. In case he/she prefers to file an appeal against the findings of medical examination. He/she is advised to apply for review medical examination in the enclosed form No.CAPF's (Constable (GD)/2 provided by P.O.) along with demand draft for `25/- in favour of DIGP, RAF, NEW DELHI PAYABLE AT SBI R.K.PURAM (CODE-1076) NEW DELHI. (address to be filled up by Medical Board who conducted medical examination of candidates) after necessary medical certificate from the medical Practitioner as per Form No.CAPF's (Constable (GD)/3. so to reach to the address within a period of 15 days from the date of medical Examination i.e. positively by ................................. failing which his/her candidature for combined recruitment of Constable (GD) in CAPF's for the year 2011-12 shall be treated as cancelled without any further notice. If the appeal is not signed by the candidate and/or if the Medical fitness certificate is not signed by the doctor appeal will be summarily rejected."

17. From the perusal of the above noted condition as communicated

to the petitioner and the medical fitness certificate given by the

petitioner duly signed by the doctor who had given medical fitness

certificate and the appeal which was also signed by the petitioner, the

reason for rejection as given by the respondents in their letter dated

20th October, 2011 is not made out.

18. From the documents produced by the respondents it is evident

that the medical fitness certificate dated 13th December, 2011 is in the

appropriate format whereas, the petitioner's request for the review

medical examination was rejected by letter dated 20th October, 2011.

However, in the counter affidavit filed on behalf of the respondents the

ground taken is not that the medical fitness certificate dated 13th

December, 2011 is not acceptable to the respondents.

19. In the facts and circumstances and for the foregoing reasons, it

will be just and equitable and in the interest of justice to direct the

respondents to constitute a review medical board for the petitioner to

examine whether he is medically fit or not in accordance with their

requirements.

20. Therefore, the writ petition is allowed and the respondents are

directed to constitute a review medical board for examining the

petitioner to ascertain whether he suffers from partial colour blindness

or not. The intimation regarding the constitution of the review medical

board and the date on which the petitioner has to appear before the

review medical board be communicated to the petitioner and his

counsel at least two weeks before the date of examination by the Review

Medical Board.

21. With these directions, the writ petition is disposed of. The parties

are, however, left to bear their own costs.

22. Needless to say that the respondents shall keep one post of

Constable (GD) vacant in terms of order dated 11th January, 2012 till

the respondents decide whether the petitioner is entitled for enlistment

to the post of Constable (GD) or not after the decision of the review

medical board. With these directions, the CM No.18328/2011 is also

disposed of.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

February 14, 2012 vk