Vinay Kumar Vishwakarma vs Union Of India & Ors.
2012 Latest Caselaw 3243 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Date of Decision: 15.05.2012

+                         W.P.(C) No.1329/2012

Vinay Kumar Vishwakarma                             ...   Petitioner

                                  versus

Union of India & Ors.                               ...   Respondents

Advocates who appeared in this case:

For the Petitioner :      Mr.S.K.Pabbi & Ms.Shikha Roy, Advocates.
For Respondents :         Mr.Abhimanyu Kumar, Advocate.

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

ANIL KUMAR, J.

*

CM No.4900/2012

This is an application by the petitioner seeking to produce

additional documents marked as Annexures P8 to P10.

Perusal of the application reveals that the documents sought to

be produced by the petitioner, are copies of the Standing Operating

Procedure (SOP) for the recruitment in the GREF Centre & Records and

the certificate issued by the Military Hospital at Dehradun dated 8th

June, 2011 and a write up on the description and definition of

Hydrocelectomy from Surgery Encyclopedia. The documents sought to

be produced by the petitioner are relevant for the determination of the

real controversies between the parties and there may not be any doubt

about the genuineness of the said documents.

The notice of the writ petition has not yet been issued to the

respondents. Consequently, the application is allowed and the

documents, annexed as Annexure P8 to P10, are taken on record.

CM No.4899/2012

This is an application by the petitioner for filing an additional

affidavit. The petitioner has disclosed that the petitioner had undergone

a hydrocele operation in the year 2009, about 1½ years before the date

of his medical examination on 18th May, 2011. This fact was not

disclosed by the petitioner in his writ petition. The petitioner by way of

the present application seeks to file an additional affidavit disclosing

about the hydrocele operation performed on him in the year 2009.

The notice of the writ petition has not yet been issued to the

respondents.

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

additional affidavit of the petitioner dated 29th March, 2012 is taken on

record.

W.P.(C) No.1329/2012

1. The petitioner has sought direction to the respondents to allow

the petitioner to join the post of Mason in the Border Road Organization

and he has also sought the quashing of orders dated 18th May, 2011

and order dated May, 2011 declaring the petitioner medically unfit for

the said post. The petitioner has further prayed that a medical board be

constituted comprising of specialist doctors from the All India Institute

of Medical Sciences for the medical examination of the petitioner.

2. The petitioner contends that the respondents had issued an

advertisement vide ADVT No.01/2010 seeking appointments to the post

of Mason in the category of OBC. The petitioner had applied for the post

of Mason in the OBC category and according to him, he had

successfully qualified the trade test and the interview.

3. According to the petitioner, he was informed by letter dated 3rd

May, 2011 that he has been provisionally selected for the said post of

Mason on the basis of trade test and interview and he was directed to

report for the medical test on 13th May, 2011 and to produce all the

documents by letter dated 3rd May, 2011.

4. The petitioner appeared before the Recruitment Zone, Rishikesh

on 13th May, 2011 and produced all the relevant documents. The

petitioner was, thereafter, asked to appear for the medical test on 18th

May, 2011.

5. The allegation of the petitioner is that he appeared for the medical

test at Recruitment Zone, Rishikesh on 18th May, 2011, however, the

medical officer without examining the petitioner, wrongly and illegally

issued a declaration that the petitioner is temporarily medically unfit on

account of following reason:-

"Post operated scrotal swelling"

6. The petitioner has contended that after being declared medically

unfit he got himself examined at Puri‟s Sanjeevani Hospital, Rishikesh,

however, the doctors at the said hospital after examining the petitioner

declared him to be fit for the service. The petitioner has contended that

in view of the medical report from the private hospital the medical

report from Recruitment Zone, Rishikesh is falsified. According to the

petitioner, he has been clearly discriminated against and his

appointment to the relevant post has been declined with mala fide

intentions, in as much, the doctors at the Puri‟s Sanjeevani Hospital,

Rishikesh had found the petitioner to be medically fit and they had also

given a declaration that he is not suffering from any diseases by

certificate dated 25th May, 2011.

7. In view of an independent opinion obtained from the private

medical practitioners, the petitioner had applied for a Review Medical

Board. Even though the respondents had carried out the Review

Medical test, however, the petitioner was again declared medically unfit

on the same ground. The Review Medical Board carried out on May,

2011 had again held that the petitioner is unfit on account of post

operated scrotal swelling. Despite the petitioner again declared

medically unfit even by the Review Medical Board, the petitioner again

got himself examined at Sitapur Hospital, Sitapur on 18th August, 2011.

The petitioner contended that the doctors at Specialist Government

Hospital at Sitapur too declared the petitioner medically fit and issued a

certificate dated 18th August, 2011 to that effect.

8. On the basis of the said fitness certificate dated 18th August,

2011, the petitioner made a representation on 29th September, 2011

seeking that he should be declared medically fit and be appointed as a

Mason. The respondents, however, rejected the representation of the

petitioner and intimated the same to him by letter dated 19th October,

2011. The petitioner, in the facts and circumstances, has challenged

the decision of the respondents declaring that the petitioner is

permanently medically unfit for the post of Mason in the Border Road

Development Board on the ground that the respondents have acted

arbitrarily and malafidely as the bare perusal of the medical certificates

produced by the petitioner show that he is medically fit, which fact has

also been certified by the qualified doctors at Puri‟s Sanjeevani Hospital,

Rishikesh and by the specialist doctor at Sitapur Hospital, Sitapur. In

the circumstances, it is contended that the petitioner is not suffering

from any health problems as has been alleged and declared by the

doctors of the respondents. In the circumstances, the petitioner has

sought the quashing of the orders dated 18th May, 2011 and May, 2011

declaring the petitioner to be medically unfit and a direction to the

respondents to appoint him to the post of Mason in Border Road

Development Board or in the alternative to constitute a medical board

comprising of specialist doctors from All India Institute of Medical

Sciences for the re-examination of the petitioner.

9. The learned counsel for the respondents, Mr.Abhimanyu Kumar

who appears on advance notice has refuted the pleas and contentions

raised by the petitioner. The learned counsel for the respondents has

contended that the petitioner deliberately did not reveal the fact that the

petitioner had undergone the hydrocele operation with a view to mislead

this Court. Relying on the Standing Operating Procedure for

recruitment for GREF Centre & Records para 8(w) of the General

ground for rejection, the learned counsel has contended that the said

rule categorically stipulates that after „Idiopathic hydrocele operation‟ if

no scar is left then a candidate can be accepted and it will not be a

ground of rejection, however, if the operation of Idiopathic Hydrocele

leaves scar, such a candidate would be liable for rejection. The learned

counsel contended that the petitioner was aware of this fact and,

therefore, along with the main writ petition neither this fact was

disclosed, nor was any document filed stating that the petitioner had

undergone an operation for hydrocele, which has only been admitted by

the petitioner subsequently in his additional affidavit, which has been

filed pursuant to the observations made by this Court. The learned

counsel for the respondents has further contended that the petitioner

was examined by the Medical Board and thereafter, the Review Medical

Board properly, and that in any case no mala fides or any other type of

malice has been imputed against the doctors of the Medical Board and

the Review Medical Board. The Medical Board which examined the

petitioner on 18th May, 2011 had declared the petitioner to be medically

unfit on account of post operated scrotal swelling. In the circumstances,

the respondents have contended that the petitioner cannot be allowed

to contend that he was declared temporarily medically unfit as has been

alleged by the petitioner. The learned counsel also contended that

thereafter, the petitioner was again examined by the Review Medical

Board and the Review Medical Board had also found the petitioner to be

medically unfit on account of having post operated scrotal swelling. In

reply to the representation made by the petitioner on the basis of the

information obtained by him from the private civilian hospitals the

respondents had categorically communicated to the petitioner by letter

dated 19th October, 2011 that his case was reviewed by the surgical

specialist on 8th June, 2011 who had declared him to be unfit on

account of post operated scrotal swelling and thickened end (Post

operated). The learned counsel for the respondents has contended that

since the petitioner was found to be medically unfit by the Medical

Board and the Review Medical Board there is no further procedure to

re-examine the petitioner. The communication dated 19th October, 2011

declining the petitioner any further Review Medical Board is as under:-

"RECRUITMENT IN GREF FOR THE POST MASON AGAINST ADVT 01/2010

1. Reference your application dated 29 Sep 2011 addressed to this office and Copy endorsed to others.

2. Your case for recruitment/appointment for the post of Mason has been perused by this office and it is informed that:-

(a) You were medically examined on 18 May 2011 by Recruitment Medical Officer and was declared permanent UNFIT for the following:-

i) (Lt) post operated scrotal swelling

3. On your appeal for review/re-medical examination on 23 May 2011, you were referred to Military Hospital Dehradun by CMIR vide letter No 16040/RTG/94/CMIR dated 23 May 2011 for review and specialist opinion of Surgical specialist.

4. You were reviewed by surgical specialist on 08 Jun 2011 and declared UNFIT for scrotal swelling and thickened end (Post operated).

5. As per rules and Standing Operating Procedure in vogue on the matter, if any candidate found unfit during re-medical examination, no further chance will be given for re-medical examination and their candidature shall stand cancelled automatically. Therefore, no further chance will be given to you for re-medical examination and your candidature shall stand cancelled automatically."

10. This Court has heard the learned counsel for the parties and have

also perused the documents filed along with the writ petition, additional

affidavit and additional documents filed by the petitioner. The learned

counsel for the petitioner has not denied that the Standing Operating

Procedure (SOP) for recruitment in the GREF Centre & Records is as per

the extract which has been filed by the petitioner himself as annexure

P8. The general grounds for rejection in para 8 details various

conditions on the basis of which the candidature of a candidate can be

rejected. Para 8(w) is as under:-

"8(w): Idiopathic hydrocele, if operated upon and if no scar is left after operation should be accepted."

11. This is not disputed by the petitioner that the Medical Board of

the respondents had found post operated scrotal swelling and even the

Review Medical Board had also found the same condition in the

petitioner. Rather the Review Medical Board which was held on 8th

June, 2011 had also noticed thickened end (Post operated) which

makes the petitioner unfit for enlistment to the post of Mason in the

Border Roads Organization.

12. The learned counsel for the petitioner has tried to argue about the

purpose of hydroselectomy and how to diagnose it. He has contended

that hydrocele is a congenital defect that is commonly corrected

surgically and there are recommended alternatives and no known

measures to prevent the occurrence of congenital hydrocele. In the

circumstances, it is contended that the petitioner had no other option

but to go for correction of hydrocele and in the circumstances, he

cannot be declared medically unfit. Perusal of the Standing Operating

Procedure (SOP) for the recruitment in the GREF Centre & Records

clearly reveals that a person who is operated for Idiopathic hydrocele is

not medically unfit if the scars are left on account of operation. This

condition for rejection has not been challenged by the petitioner and

can also not be challenged in the facts and circumstances.

13. Perusal of the report of the medical examinations of the petitioner

reveals that he has Post operated scrotal swelling and has thickened

end (Post operated) which makes him medically unfit for enlistment to

the post of Mason.

14. The learned counsel for the petitioner is also unable to show any

regulation or rules under which the petitioner is entitled for yet another

Review Medical Board or Appellate Medical Board for his examination

after he was medially examined by a Medical Board on 18th May, 2011

and thereafter, by a Review Medical Board on 8th June, 2011. In the

absence of any rules and regulations for any medical board to examine

him again, the petitioner cannot claim as a matter of right that a Review

Medical Board be constituted to examine the petitioner. No bias or any

mala fides has even been alleged against any of the members of the

Medical Board or the Review Medical Board. In the circumstances, the

findings of the Medical Board and the Review Medical Board cannot be

doubted and the petitioner is not entitled for the constitution of an

independent Medical Board of the doctors of All India Institute of

Medical Sciences as has been demanded by the petitioner.

15. For the foregoing reasons and in the totality of facts and

circumstances, the petitioner cannot contend that he is medically fit

and is entitled for appointment to the post of Mason in the Border

Roads Organization. The findings of the Medical Board and the Review

Medical Board also do not suffer from any illegality or any such

irregularity which shall require quashing of the same by this Court in

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

The petitioner is also not entitled for the constitution of an independent

Medical Board comprising of specialist doctors from All India Institute

of Medical Sciences as has been sought by the petitioner. In the

circumstances, the petitioner is not entitled for any of the reliefs sought

by him and the writ petition is liable to be dismissed.

16. The writ petition is, therefore, dismissed. Parties are left to bear

their own cost.

ANIL KUMAR, J

SUDERSHAN KUMAR MISRA, J.

MAY 15, 2012 „k‟