Susanta Maiti vs Union Of India & Ors.
2012 Latest Caselaw 600 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 WP(C) No.7675/2011

%                          Date of Decision: 30.01.2012

Susanta Maiti                                                     .... Petitioner

                        Through Col. N.L.Bareja (Retd.), Advocate


                                     Versus

Union of India & Ors.                                        .... Respondents

                        Through Mr.Ankur Chhibber, Advocate.

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

ANIL KUMAR, J.

*

1. The petitioner has sought a direction to the respondent to treat

the petitioner as medically fit, in terms of the fitness certificate issued

by the DDU and consequently to issue him a letter of appointment to

the post of Follower/Peon, a Group-D-M/Staff post in the CRPF or in

the alternative to direct the examination of the petitioner by

constituting an independent medical board or any other Government

hospital. The petitioner has also sought directions to restrain the

respondents from issuing any orders of appointment in the Group-D-

M/Staff post in the CRPF to any persons pending the finalization of the

writ petition and to keep one vacancy reserved for the petitioner. The

petitioner has also prayed for directions to the respondents to pay

appropriate compensation/damage towards the sufferings and mental

agony undergone by the petitioner on account of the unjustifiable acts

on the part of the respondents for depriving the petitioner of his rights

for appointment to the post of Follower/Peon in the Group-D-M/Staff

post in CRPF.

2. The petitioner contended that he was engaged in the office of the

Director General of Police as a casual worker on temporary basis

against the regular sanctioned Group-D post on 24th January, 1995.

Thereafter the engagement of the petitioner was renewed from time to

time for short spells of three to six months.

3. The plea of the petitioner is that his services were terminated on

23rd September, 1996 along with a number of similarly situated persons

though his services ought to have been regularized in terms of O.Ms

dated 26th October, 1984 and 7th June, 1988.

4. The petitioner contended that he along with 21 other similarly

situated persons had filed an original application bearing O.A

No.2099/1999 seeking regularization in terms of DOPT scheme dated

10th September, 1993. However, the original application of the petitioner

was disposed of by order dated 4th July, 2000 with the directions to the

respondents to consider the case of the applicants. The petitioner

thereafter, filed a writ petition being W.P(C) No.1535/2003 which was

disposed of by order dated 10th October, 2007 directing the respondents

to consider the case of the petitioner in accordance with their rules, as

and when the regular recruitment would take place, giving some

weightage for the services rendered by the petitioner in the past, relying

on the judgment of the Supreme Court in the case of State of Karnataka

& Ors v. Uma Devi & Ors.

5. According to the petitioner a copy of the order dated 10th October,

2007 was sent to the respondents for its compliance by letter dated 25th

October, 2007. However, no response to the same was received from the

respondents. Because of the inaction of the respondents, repeated

reminders were also sent by petitioner. Consequently the petitioner and

other similarly situated persons were directed to report to GC-I, CRPF

Ajmer, Rajasthan on 4th September, 2008 to participate in the

recruitment process from 4th September, 2008 to 6th September, 2008.

The petitioner, therefore, participated in the recruitment process.

6. He alleged that during the recruitment process he was found

medically fit in respect of the physical test. Thereafter the petitioner was

medically examined by the recruitment medical officer on 6th

September, 2008 and he was asked to sign certain documents though

nothing was explained to him regarding the contents of the same, nor

was any communication given to him in writing regarding his medical

status and fitness.

7. The respondents thereafter issued the consolidated instructions

including the conduct of the medical examination and the

recommendation for enrolling/recruiting persons to the CRPF by letter

dated 24th November, 2008. The petitioner, however, was not given any

letter of appointment, because of which after the lapse of considerable

time he requested to be intimated about the status of the petitioner‟s

recruitment to the CRPF.

8. Subsequently the respondent No.3, Inspector General of Police,

Northern Sector, CRPF intimated the petitioner by letter dated 26th

November, 2009 that the petitioner had been declared medically unfit

by the recruitment medical officer during the course of his medical

examination on 6th September, 2008.

9. The petitioner alleged that thereafter, he got himself thoroughly

examined from the DDU Hospital (Govt.) where the petitioner was

declared medically fit and a medical certificate dated 27th February,

2010 was issued to him. The petitioner thereafter, sent a notice dated

24th June, 2010 to the respondents seeking his recruitment in the

CRPF on the basis of the medical fitness certificate issued by the DDU

Hospital. However, the respondents declined the petitioner‟s request on

the ground that he did not prefer the appeal within the stipulated

period and therefore, he was not even permitted to appear before the

appellate medical board in terms of the instructions issued in

November, 2008.

10. The petitioner also alleged that he had categorically cited the

reasons for not having filed the appeal within the stipulated period on

account of not receiving the Medical Board Proceedings and

consequently he was not aware of the disease or the medical condition

for which he was declared medically unfit. The petitioner also contended

that since he was denied the copy of the medical board proceedings he

even tried to procure the same by taking recourse under the Right to

Information Act, 2005 which was also denied to him on the ground that

the documents could not be supplied to him since the CRPF is

exempted under Section 24 (1) of the RTI Act, 2005. Thereafter an

appeal was also filed against the order of rejection, however, even the

appeal was dismissed. Aggrieved by the dismissal the petitioner even

preferred a second appeal which is pending before the CIC. Along with

the petition, the petitioner has filed the communication dated 26th

November, 2009 wherein it was categorically stipulated that the

petitioner was verbally intimated about his medical unfitness by the

CMO after the petitioner‟s medical examination and that the petitioner

had also signed his medical unfitness report in lieu of knowing the

reason for his medical unfitness.

11. The petitioner thereafter filed the present writ petition in which

on 24th November, 2011 the show cause notice was issued to the

respondents. They filed a counter affidavit dated 22nd December, 2011

categorically stating that the petitioner was working on daily wage

basis, with the condition that his appointment was purely temporary

and therefore could be terminated at any time without assigning any

reasons. It was further contended that pursuant to the order dated 10th

October, 2007 passed by the High Court in W.P(C) No.1535/2003 titled

as „Ex.C.N.Paid Vijay Kumar Sharma v. Union of India & Ors‟ the

petitioner‟s case was considered for recruitment for the post of

Follower/Peon. Even though the petitioner and the other candidates

were overage, relaxation was granted pursuant to the directions of the

High Court in order dated 10th October, 2007. Among the candidates

who were considered after giving them age relaxation, only Sh. Vijay

Kumar Sharma s/o. Sh.Nathi Lal Sharma was found medically fit and

the petitioner was found to be medically unfit on account of having "K

Chest". The petitioner had been intimated about his medical unfitness

by the CMO on the spot and the petitioner had also signed on the forms

in lieu of knowing the reason for his medical unfitness.

12. In the reply to the show cause notice the respondents

categorically stated that the petitioner was found unfit by the board of

officers during his medical examination due to "K Chest". The averment

that the petitioner was unfit on account of "K Chest" was made in para

4(iii)-(iv); 4(vii) & 4(ix) of the reply to the show cause notice dated 22nd

December, 2011.

13. The petitioner thereafter, filed a rejoinder to the reply to the show

cause notice and contended that he had got himself thoroughly

examined at the Government hospital, who had declared the petitioner

medically fit. The petitioner, however, did not aver categorically that

from the DDU hospital or any other hospital he had got himself

examined to ascertain whether he is suffering from "K Chest" or not.

14. Along with the rejoinder the petitioner has also not produced any

report from any Government hospital or any other hospital that certifies

that the petitioner does not have "K Chest" or that despite having the

disease of "K Chest" he is medically fit.

15. The learned counsel for the petitioner, Mr.Bareja has also relied

on the decisions of this Court in W.P(C) No.634/2011 titled as „Anil

Kumar v. Union of India & Ors‟ decided on 1st February, 2011 and

W.P(C) No.6150/2011 titled as „Surender Pratap Singh v. Union of India

& Ors.‟, decided on 5th December, 2011 in support of the pleas of the

petitioner.

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

and has also perused the original record of the respondents pertaining

to the petitioner, produced by them. The medical report dated 6th

September, 2008 in para I categorically disclosed that X-Ray of the

petitioner was taken and that the petitioner has "K Chest". In item

No.27 the query that was specifically stipulated is as under:-

"27. Is there anything in the health of the candidate likely to render him unfit for the efficient discharge of his duties in service for which he is a candidate?"

The answer given is yes, T.B Chest.

In question No.31 regarding remarks of the medical officer on the

overall health, the health certificate part I stipulates as under:-

"Remarks of medical officer on the overall health and physical fitness with reasons. The medical officer should also know any deficiency in physical standards and state whether it is likely/unlikely to be made up in the near future."

In answer to the said clause it is stated "X-Ray chest PA K.Chest.

It is also stated unfit due to "K Chest".

17. The said health ceretificate is duly signed by the petitioner and is

dated 6th September, 2008. Though the learned counsel for the

petitioner, Mr.Bareja had insisted that for the said medical health

certificate, no tests were carried out, however the enquiries were made

from the petitioner who was present in Court and he admitted that the

X-Ray of his chest had been taken.

18. No malafides have been imputed against the respondents nor do

we find any such allegations being made by the petitioner which would

indicate or reflect any reason for the respondents to have falsely

declared the petitioner as medically unfit. In the circumstances, this

Court also do not believe that the respondents had not disclosed to the

petitioner the reason for his medical unfitness on account of petitioner

suffering from "K Chest". In any case in the counter affidavit filed by the

respondents it has been categorically stated in a number of paragraphs

that the petitioner was found medically unfit on account of having "K

Chest". This allegation that the petitioner is having "K Chest" has not

been specifically denied nor has the petitioner got himself examined

from the DDU hospital for "K Chest".

19. The petitioner has produced a fitness certificate dated 27th

February, 2010 stipulating the details of BP, Pulse and other

parameters of the petitioner. Even though, in the said certificate it is

stated that the chest is normal, however, it is not disclosed as to how

the doctor at the DDU hospital found out that the petitioner has a

normal chest and that he does not have a "K Chest" which is equivalent

to having TB of the chest. In order to properly ascertain that the

petitioner has a normal chest, the least that the doctors at the DDU

Hospital were expected to do, was to take the X-Ray of the petitioner‟s

chest. However, without taking the x-ray of the chest or without

carrying out any other tests, the doctor of the DDU Hospital have given

a certificate that the petitioner is medically fit.

20. In the circumstances, this Court is unable to infer that on 6th

September, 2008 when `K Chest' was detected in the case of petitioner

after taking his X-ray, he was intimated about it. This also cannot be

believed that the medical unfitness of the petitioner was not disclosed

and that the petitioner had signed the said report in blank. It cannot be

accepted that the petitioner had not known that he is not entitled for

recruitment to CRPF on account of having " K Chest".

21. On the basis of alleged fitness certificate dated 27th February,

2010 and in the absence of any other contrary opinion disclosing that

the petitioner is not suffering from `K Chest', the petitioner can neither

contend that he is medically fit nor can he claim that he is entitled for a

review medical board nor can it be held that the petitioner is medically

fit for appointment to the post of Follower/Peon, a Group-D-M/Staff

post with the respondents.

22. The learned counsel for the respondents has also pointed out that

the petitioner was found medically unfit on 6th September, 2008 and

that the policy regarding the candidate not being satisfied with the

finding of the medical officer and therefore, claiming a review medical

examination came into effect only on 24th November, 2008. The policy

dated 24th November, 2008 also contemplates that a review medical

examination can be conducted only if there is fresh evidence in the form

of a certificate/note by a medical practitioner stating that the candidate

in question is medically fit and also that the said medical practitioner

has full knowledge of the facts that the candidate has already been

declared medically unfit for the service in the CRPF by a medical officer.

23. Therefore, even to claim for the review medical board, the

petitioner ought to have categorically denied on the basis of reliable

medical opinion that he does not have "K Chest" and that he is not

suffering from any TB of the chest. The petitioner knew that he had

been declared unfit on account of "K Chest" on 6th September, 2008 but

he did not disclose the said fact while obtaining the alleged fitness

certificate dated 27th February, 2010 from the doctor of DDU hospital,

who had opined that the chest of the petitioner is normal without even

taking an X-Ray or indicating any other parameters and conditions or

reasons about the chest of the petitioner from which it could be inferred

that the petitioner has a normal chest.

24. Consequently even according to the subsequent policy regarding

the review medical board, in the absence of any reasonable certificate

from the DDU hospital or any other hospital refuting the findings of the

medical board of the respondents that the petitioner has "K Chest", the

petitioner is not entitled for the review medical board.

25. The precedents relied on by the petitioner are also distinguishable

and do not advance the plea taken by the petitioner. In Anil Kumar

(supra) it was held that large number of candidates report for

recruitment and that the doctors are hard pressed for time and thus

discrepancies occurs in the measurements of chest especially regarding

expanded and unexpanded chest. In these circumstances the counsel

for the parties had agreed to refer the matter to the medical officers of

the Medical and Health Centre attached to Delhi High Court, who were

thereafter sent there and the measurements of the candidate for

unexpanded chest and expanded chest was again taken and it was

found to be within the acceptable parameters. Therefore, the Court had

held that candidate was entitled for his candidature to be further

processed. The case of the petitioner is apparently distinguishable as

there is nothing on record to show that the petitioner does not have "K

Chest" nor has the specific averment made by the respondent that he is

fit and does not have `K Chest" on the basis of any other medical

opinion nor any such opinion has been produced before this Court.

26. In Surender Pratap Singh (supra) the dispute was whether the

height of the petitioner is 169 cm or 170 cm. In the case of the said

candidate his height was shown as 170 cm at the time of the Physical

Endurance Test (PET) conducted by the authorities, however, his height

was measured as 169 cm at NISA. Since in the records of the

respondents there were two heights, 169 cm and 170 cm, therefore, this

Court had directed the re-measurement of the height of the said

candidate by another independent board and consequently, the Military

Base Hospital, Delhi Cantt., New Delhi was directed to measure his

height. In contradistinction to the above-noted cases the petitioner in

the present case was declared medically unfit on account of having "K

Chest" and there is no report from any competent medical hospital

based on relevant test including x-rays of the petitioner, stipulating that

the petitioner does not have "K Chest". Rather the petitioner did not

even disclose to the DDU Hospital that he had been declared medically

unfit on account of having "K Chest", which is TB of the chest. The

alleged fitness certificate dated 27th February, 2010 cannot be relied on

in the facts and circumstances. In the rejoinder the petitioner has not

even denied the specific averment made in the counter affidavits of the

respondents that the petitioner has "K Chest" which is the reason why

he was declared medically unfit and ineligible for appointment.

27. In the totality of the facts and circumstances and for the foregoing

reasons there are no grounds to hold that the petitioner is medically fit

and that he is entitled for a review medical board. The writ petition in

the facts and circumstances is without any merit and the decision of

the respondents not to hold the review medical board cannot be faulted.

The petitioner is not entitled for appointment to the post of

Follower/Peon, a Group-D-M/Staff post in the CRPF. The petitioner has

failed to make out any such illegality, irregularity in the actions of the

respondents which will require any interference by this Court in

exercise of its jurisdiction under Article 226 of the Constitution of India.

The writ petition is, therefore, dismissed.

CM No.17421/2011

This is an application seeking restraint against respondents for

issuing any appointment letters for vacancies meant for Group-D-

M/Staff post. Since the writ petition has been dismissed the petitioner

is not entitled for any interim relief and application is also dismissed.

ANIL KUMAR, J.

J.R.MIDHA, J.

January 30, 2012 „k‟