Prem Prakash vs Union Of India & Anr.
2012 Latest Caselaw 405 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          WP(C) No.8940/2011

%                       Date of Decision: 20.01.2012

Prem Prakash                                             .... Petitioner

                     Through Mr.Himansu Upadhyay & Mr.Shivam
                             Tripathi, Advocates.


                                Versus

Union of India & Anr.                                  .... Respondents

                     Through Mr.Ravinder   Aggarwal,    Central    Govt.
                              Standing Counsel.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA


ANIL KUMAR, J.

*

1. The petitioner has sought directions to the respondents to

conduct his Review Medical Examination, since his candidature to

the post of Constable had been disqualified without assigning any

reasons or giving any reply to the earlier review medical examination

conducted on 30th April, 2011

2. Brief facts to comprehend the dispute between the parties are

that the respondents had invited applications for the post of

Constable in the Border Security Forces. The petitioner had applied

for the said post and he was informed to appear on 16th January,

2011 at 8:00 am at Saraswati Senior Secondary School, 142, Subh.

Aash Nagar, Sheela Complex for the written test. On 12th February,

2011 the petitioner was declared successful in the written

examination and was directed to appear on 9th March, 2011 at the

Battalion office, Border Security Force, Hissar, Haryana alongwith

his original documents and photographs for his medical

examination.

3. Pursuant to the medical examination of the petitioner he was

found to be medically unfit on account of „knock knee‟ and „spinal

deformity‟ by letter dated 9th March, 2011. However, the petitioner

was afforded the right to prefer an appeal against the findings of the

medical examination by obtaining the necessary medical certificate

from a Medical Officer within 15 days by 18th March, 2011.

4. The petitioner, therefore, obtained a medical certificate dated

9th March 2011 whereby he was declared medically fit by Dr. Ashok

Saini, Medical Officer (Orthopaedician) General Hospital, Rewari,

after which he sought for his appeal against the medical examination

conducted by the respondents.

5. By letter dated 15th April, 2011 the petitioner was informed to

appear before the Composite Hospital, Border, Security Force,

Jalandhar Cantt. Punjab on 30th April, 2011 for his review medical

examination. According to the petitioner thereafter, he did not

receive any reply intimating the result of the review medical board,

even though the recruitment process was completed. Neither did the

respondents confirm to the petitioner anything nor did they give any

reasons for the review application moved by him. The petitioner

therefore, made a representation before the respondents and was

informed that he had been declared „unfit‟ on account of „knock knee‟

and „spinal deformity‟.

6. The petitioner has contended that on receiving the declaration

of his unfitness by the medical examination, he again got himself

examined by the SMO, Rewari, Haryana and found that there was no

infirmity of either knock knee or spinal deformity.

7. Aggrieved by the findings of the Review Medical Board the

respondent filed an application under the Right to Information Act,

2005 to seek the reasons for him being declared unfit. However,

according to the petitioner, his request was rejected by the

respondents and no reasons for the same were given to the

petitioner.

8. It is against the finding of the Review Medical Board that the

petitioner has approached this Court under its writ jurisdiction,

contending inter alia that on being declared fit by the SMO, Rewari

and not having „knock knee‟ and „spinal deformity‟, he applied for the

review medical examination, however till now neither have the

results been declared nor have the reasons been assigned for not

recruiting the petitioner to the post of Constable. According to the

petitioner his right has been denied by the respondents in the most

arbitrary manner, and he has the right to be re-examined by the

Review Medical Board.

9. Learned counsel for the respondents who has appeared on

advance notice has produced the dossier file of the petitioner

including the reports of the Medical Board and the Review Medical

Board declaring the petitioner unfit. The medical examination was

carried out by the Senior Medical Officer, Dr.Lallan Kumar of 80 Bn.,

BSF, while the review medical examination of the petitioner was

carried out by a board comprising of three experts namely Dr. Jagdev

Singh, Chief Medical Officer, Sector Headquarter, BSF Abohar, Dr.

Avinash, CMO (SG) and Dr.Sukhbinder Singh, CMO (SG) CH

Jalandhar.

10. This court has heard the learned counsel for the parties in

detail. This is not disputed that `knock knee' and „spinal deformity‟

will impact a candidate‟s fitness for enlistment to the Border Security

Force. However, a case of mild knock knee with inter malleolar

distance of 5 cm or less is a minor acceptable defect as per para 21

of the Uniform Guidelines for Medical Examination Test (MET) For

Combined Recruitment of Constable/GD in CAPFs and ARs. Perusal

of the medical report carried out by the Senior Medical Officer of 80

Bn. BSF reveals that though the reasons for the unfitness of the

petitioner has been cited as knock knee and spinal deformity, it has

not been specified whether it a case of mild knock knee with inter

malleolar distance of 5 cm or less. However, for the reason of spinal

deformity, the detail given is loss of lumbar lordosis and scoliosis.

11. After the petitioner was communicated the result of the

Medical Board Examination carried out at 80 Bn. BSF, the petitioner

obtained a certificate dated 9th March, 2011 from Dr. Ashok Saini,

the Medical Officer (Orthopaedician), General Hospital, Rewari who

acknowledged that the petitioner had been declared medically unfit

on account of knock knee and spinal deformity. He however,

declared that the petitioner is medically fit after medical

examination. The said Medical Officer who certified the petitioner to

be fit, however, has not given any reason or any other detail as to

how he has found the petitioner to be fit. The Civilian Medical

Officer, General Hospital, Rewari also did not specify whether the

petitioner is having a case of mild knock knee with inter malleolar

distance of 5 cm or less, and therefore, he does not have knock knee

that could disqualify his candidature, nor did he disclose that the

petitioner does not have loss of lumbar lardosis and scoliosis, which

were the grounds for inferring spinal deformity of the petitioner by

the Medical Board of the respondents.

12. After the petitioner sought his review medical examination on

account of the certificate obtained from the Medical Officer, General

Hospital, Rewari, the review medical examination was carried out by

a Board comprising of three experts at the Sector Headquarter, BSF,

Abohar. In the review medical examination, again knock knee and

spinal deformity on account of increase lardosis was deduced.

13. The petitioner, thereafter, sent a complaint and application

under the Right to Information Act, 2005 alleging corruption and

violation of the right to equality by the Recruitment Board, Border

Security Force, Jalandhar. The petitioner has alleged that he did not

receive any reply to his representation, and thereafter, he filed the

present writ petition contending, inter-alia that when he was

declared as medically fit by the Medical Officer of General Hopital,

Rewari , the respondents have not declared the result, nor have they

assigned any reasons for not recruiting the petitioner to the

concerned post. The petitioner asserted that he has a right to be re-

examined by the Medical Board when there is a difference of opinion

between the SMO Rewari and the Medical Practitioner serving the

BSF. The petitioner also asserted that he has cleared the

examination and is physically fit and that he has been deprived of

recruitment illegally on arbitrary and other reasons, which were

neither conveyed to him, nor were they known to the petitioner.

14. In the circumstances, it is inevitable to infer that the petitioner

does not have a case of mild knock knee with inter malleolar

distance of 5 cm or less, but has in fact knock knee beyond the

scope of minor acceptable defects and also has spinal deformity on

account of increased lardosis and scoliosis. Scoliosis is a medical

condition in which a person‟s spine is curved side to side, while

Lumbar Lardosis is a medical condition when the low back curves

too far in, which makes a person look a bit "swaybacked". Too much

of a curve in the low back puts pressure on the entire back in turn

entails poor movement. Knock knee is a condition in which the knees

touch, but the ankles do not touch, which make the legs angle

inward and it leads to difficulty in walking. Therefore clearly the

reasons cited by both the Medical Boards are valid grounds for

disqualifying the candidature of the petitioner to the post of

Constable. In any case the certificate obtained by the petitioner from

the Civil Authorities does not reveal anything except a bald

statement that the Medical Officer, General Hospital, Rewari had

examined the respondents and had consequently declared him to be

medically fit from knock knee and spinal deformity.

15. In the circumstances, there is nothing on the record to

substantiate that the petitioner does not have knock knee and spinal

deformity except a bald statement in the certificate by the Medical

Officer, General Hospital, Rewari. The petitioner has also annexed a

copy of the application under the Right to Information Act, 2005.

However, it is pertinent to note that the copy of the said application

is undated and it does not even disclose as to whom it was addressed

to nor is there anything to show that the application in fact was even

sent by the petitioner to any of the authorities of the respondents. In

the undated and unsigned application the petitioner has claimed

that during his review medical examination he was not medically

examined but was instead asked by the physician present at the time

if he had the money to clear the exam. When the petitioner replied in

the negative, the physician allegedly enquired was if he has any

relatives in the BSF service who could facilitate the clearance of his

medical examination, which was again denied by the petitioner.

Therefore the petitioner has made allegations of corruption against

the Medical Board of the BSF. However, in the writ petition there is

no such averments made on behalf of the petitioner except that he

has not been rendered any information under the Right to

Information Act, 2005 and annexing a copy of such an application.

16. Learned counsel for the petitioner has also referred to a

decision of this Court in W.P.(C)3124 of 2011, titled as „Manoj Kumar

v. Union of India & Ors.‟, decided on 10th May, 2011 in which

reliance has been placed on the observation that in 30 cases of the

persons who were alleged to be suffering from a medical disability by

the CRPF, were referred to the Army (RR) Hospital. Among these 30

cases 27 persons, were opined to have been fully fit. In the

circumstances, inference was drawn that errors have been

committed by the doctors of CRPF in approximately 88% of the

cases. The facts of the instant case is however distinguishable with

the facts of the present matter. The petitioner in the present matter

was examined by the Medical Officer of the Border Security Force

and there is no observation in the case of Manoj Kumar (supra) that

there had been errors to the extent of 88% in the medical

examination conducted by the Medical Boards of the BSF. In any

case, the certificate from the Medical Officer, Rewari obtained by the

petitioner independently is extremely vague as no reasons have been

disclosed as to why the petitioner should not be treated as a case of

knock knee and why he does not have spinal deformity. Moreover, a

review medical board was constituted and the petitioner was duly re-

examined by an entirely different Unit of Medical Officers who also

concurred with the earlier opinion that the petitioner has knock knee

and spinal deformity. In the circumstances, the ratio of the judgment

relied on by the petitioner is not applicable and cannot come to the

rescue to the petitioner. The petitioner has also relied on the case of

Naresh Kumar v. Union of India & Ors., W.P.(C) 3125/2011, decided

on 10th May, 2011, in which the medical examination by the CRPF

was commented on adversely. The said case is also apparently

distinguishable.

17. Apparently, the cases relied on by the petitioner are

distinguishable and on the basis of the ratio of the above noted case,

it cannot be held that the petitioner is medically fit. While

appreciating a precedent, it must be remembered that the ratio of

any decision must be understood in the background of the facts of

that case. What is of the essence in a decision is its ratio and not

every observation found therein nor what logically follows from the

various observations made in it. A decision is only an authority for

what it actually decides. It is well settled that a little difference in

facts or additional facts may make a lot of difference in the

precedential value of a decision. The ratio of one case cannot be

mechanically applied to another case without having regard to the

factual situation and circumstances in two cases. The Supreme

Court in Bharat Petroleum Corporation Ltd and Anr. v.

N.R.Vairamani and Anr., (AIR 2004 SC 778), had held that a decision

cannot be relied on without considering the factual situation. In the

said judgment the Supreme Court had observed as under:-

" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

18. In the totality of the facts and circumstances, it is not possible

to infer that the report of Medical Practitioner of 80 Bn, BSF and that

of the Review Medical Board conducted by the BSF, Regional

Headquarter, Abohar are to be rejected in view of the medical

examination of the petitioner done by the Medical Officer, General

Hospital, Rewari. In the circumstances, the petitioner is not entitled

for a direction to the respondents to conduct another review medical

examination of the petitioner. The writ petition is without any merit,

and it is, therefore, dismissed.

ANIL KUMAR, J.

J.R.MIDHA, J.

January 20, 2012 „vk‟