Ashish Kumar vs Union Of India And Ors
2013 Latest Caselaw 3873 Del

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     * IN THE HIGH COURT OF DELHI AT NEW DELHI

     +                     W.P.(C) 307/2013,
                     CM Nos. 644/2013 & 12285/2013

      %                      Date of decision: 2nd September, 2013

      ASHISH KUMAR                                   ..... Petitioner
                           Through :    Mr. Ashish, Adv. for
                                        Mr. M.K. Bhardwaj, Adv.
                           versus

      UNION OF INDIA AND ORS            ..... Respondents
                    Through : Mr. Amit Pal Singh, Adv.
                              for R-1 to 3.
      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MR. JUSTICE NAJMI WAZIRI

GITA MITTAL, J. (Oral)

CM No.12285/2013 By this application , the respondents prays for condonation of delay in filing the counter affidavit. For the reasons stated, the delay is condoned.

This application is allowed.

W.P.(C) 307/2013 & CM No. 644/2013

1. In the instant case, the petitioner is aggrieved by the failure of the respondents to conduct a Review Medical Board despite his request for the same. The petitioner had participated in the recruitment undertaken by the respondents for the post of Sub-

WP(C) No.307/2013 page 1 of 6 Inspector in Central Armed Police Force and Assistant Sub- Inspector in the Central Industrial Security Force pursuant to advertisement dated 18th - 24th February, 2012. The petitioner had admittedly qualified the written examination as well as the physical efficiency test. However, he was declared medically unfit during the medical examination conducted between 11 th - 12th September, 2012 on account of alleged deformity in the left upper limb. The petitioner has contended that there was no deformity in his left upper limb as alleged; that in fact the petitioner had suffered fracture for which a support had been given. On removal of the support, petitioner was fit to discharge all duties attached to the post in question.

2. The petitioner exercised his right to appeal against the findings of the Medical Board. Before doing so, the petitioner got himself subjected to a medical examination by the Chief Medical Officer, PGI, Rohtak wherein it was held that the petitioner did not have any deformity in his hands. The petitioner therefore, approached the respondents enclosing the said medical certificate of the PGI, Rohtak. However, he did not receive any information of the date and time of the Review Medical Board.

3. The respondents had apparently undertaken a Review Medical Board of other candidates. Upon learning of the same, the petitioner approached the respondents whereupon he was informed that his Review Medical Board was scheduled on 7th November, 2012 in which he had failed to appear and nothing further could be

WP(C) No.307/2013 page 2 of 6 done.

4. The petitioner approached this court at the stage when the respondents started the interview of similarly placed candidates who had been subjected to Review Medical Board. The petitioner contends that he has been illegally and wrongly denied the opportunity to undergo the Review Medical Board.

5. In the counter affidavit which has been filed before this court the respondents have contended that they have issued call-up letter dated 18th October, 2012 to the petitioner to make himself available for the Review Medical Board which was to be conducted on the 7th of November, 2012 at the Composite Hospital, Border Security Force, Jodhpur. So far as service of the notice was concerned, it was contended that the same was sent by ordinary process in the self-addressed envelope submitted by the petitioner with the postal stamp of Rs.5/- which had been affixed by him. It is contended that this notice was sent by the respondents well in time. The respondents also submit that intimation of the review medical examination of the candidates was uploaded on the CISF website for information to the candidates.

6. We find that petitioner has disputed receipt of any notice from the respondents with regard to any review medical examination. Given the fact that same has been dispatched by ordinary process, the petitioner has adequately rebutted any presumption which could have been drawn against him upon the respondents having dispatched the notice by ordinary process. In

WP(C) No.307/2013 page 3 of 6 any case, no benefit would have enure to this petitioner by staying away from the medical examination, more so when he himself seeks recruitment and the review medical examination for which he had duly approached the respondents.

7. So far as the posting of the result on the website is concerned, the petitioner has stated that he is a permanent resident of Village Kharkara, Tehsil Meham, District Rohtak, Haryana. Judicial notice can be taken of the fact that there is every possibility of the petitioner not having access to computer facilities or the internet. The respondents are unable to inform this court the date and time on which the information was uplodaded on their website. There is also nothing in the advertisement which states that the information to the candidate would be given only by posting it on the website. No benefit can therefore, be derived by the respondents by any such action.

8. We may also note that the respondents did not treat the posting of information on the website as sufficient notice inasmuch as they claim to have dispatched individual notices to the petitioner as well as other candidates who were being invited to undergo the review medical board.

9. In view of the above, we find substance in the petitioner's plea that he has not received the intimation of the date of the review medical examination. We are satisfied that the petitioner has been wrongly denied review medical examination for the purpose of recruitment to the aforenoticed position.

WP(C) No.307/2013                                         page 4 of 6
         In view of the above we direct as follows:-
(i)     The petitioner shall be subjected to Review Medical Board

which shall positively be conducted as per prescribed procedure within four weeks.

(ii) On request of learned counsel for the parties, it is directed that the petitioner's Review Medical Board shall be conducted on 16th of September, 2013 at 11:00 a.m. in accordance with the letter dated 18th October, 2012 at the Composite Hospital, Border Security Force, Post Office BSF Campus, Mandore Road, Jodhpur, Rajasthan - 342026.

(iii) The petitioner shall report to the Deputy Inspector General (Medical) CISF at the Composite Hospital, Border Security Force, Post Office BSF Campus, Mandore Road, Jodhpur, Rajasthan - 342026 with all medical documents in his power and possession as well as proof of identity and two photographs for the review medical examination.

(iv) The result of the medial examination shall be informed to the petitioner.

(v) In case the petitioner is declared fit for recruitment, the respondents shall complete the recruitment process at the earliest and thereupon facilitate the training which the petitioner may be required to undergo. The petitioner shall be entitled to benefit of notional seniority as per his result in the selection process.

WP(C) No.307/2013 page 5 of 6 This writ petition is allowed in the above terms. Dasti to parties.

(GITA MITTAL) JUDGE

(NAJMI WAZIRI) JUDGE SEPTEMBER 02, 2013 mk

WP(C) No.307/2013 page 6 of 6