Delhi High Court
Mishira Rakesh Vishwambhar vs Union Of India And Ors. on 21 September, 2015
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)4913/2014 & CM.APPL 9831/2014(stay)
% Judgment dated 21st September, 2015
MISHIRA RAKESH VISHWAMBHAR ..... Petitioner
Through : Mr.Purshottam Sharma Tripathi and
Mr. Mukesh Kumar Singh, Advocates
versus
UNION OF INDIA AND ORS. ..... Respondents
Through : Mr. Arun Bhardwaj, CGSC with
Mr. Rishi Kapoor, Advocate
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J (ORAL)
1. With the consent of the parties, the writ petition is set down for final
hearing and disposal.
2. The necessary facts which are required to be noticed for disposal of this
petition are that in the year 2008, the petitioner qualified the All India
Competitive Examination held for appointment to the post of Junior
Engineer(Electrical). He was appointed by respondent no.3. A joining
report was also submitted by the petitioner on 03.06.2008. He was required
to report to the Superintending Engineer(Electrical), Delhi by a letter dated
16.07.2008 issued by Central Public Works Department, Delhi Central
Electrical, Circle-6, Vidyut Bhawan, New Delhi along with Medical
Certificate on or before 18.08.2008. On 26.08.2008, the petitioner was
W.P.(C) No.4913 /2014 Page 1 of 5
medically examined at Dr. Ram Manohar Lohia Hospital, New Delhi.
While the Medical Board declared the petitioner to be fit for the post
noticed that although the petitioner had Congenital Nystagmus (involuntary
eye movement since infancy), the same was not considered to a
disqualification for the post of Junior Engineer, but the eye specialist
declared him to be unfit. On 28.08.2008, the doctors at RML Hospital who
examined the petitioner advised him to undergo treatment for Nystagmus.
The petitioner addressed a letter to respondent no.4 seeking six months
extension for joining duty. The petitioner got his eyes examined at the
Shroff Eye Centre, Central Hospital, Ulhasnagar-3 and Sanjivani Hospital,
Virar, Distt Thane respectively on 02.09.2008, 20.09.2008 and 22.09.2008,
who certified that the petitioner did not suffer from any eyesight related
disability due to Nystagmus. The eyesight of the petitioner became normal
after the treatment of his eye and therefore, on 23.09.2008 he requested
respondent no.4 for a fresh medical check up. On 03.10.2008, the Assistant
Engineer(HQ), CPWD sought a direction of respondent no.4 on the request
made by the petitioner seeking re-medical check up. On 15.10.2008,
respondent no.3 also sought direction of the Additional Director General
(S&P), CPWD on the request made by the petitioner for re-medical check
up. The petitioner also got his eyes checked at Super Specialty Eye Care &
Laser Centre, Kavi Nagar, Ghaziabad, All India Institute of Medical
Sciences(AIIMS), New Delhi and Safdarjang Hospital on 13.12.2008,
30.12.2008 and 31.12.2008 respectively. Thereafter, on 02.01.2009, the
office of Directorate General of Works, CPWD allowed the petitioner to be
re-examined medically. Pursuant to the order dated 05.01.2009, the
petitioner was medically re-examined by a Medical Board of the RML
Hospital which submitted its report to the Assistant Engineer(HQ), CPWD.
On 12.02.2009, the petitioner was informed by the Assistant Engineer(HQ),
W.P.(C) No.4913 /2014 Page 2 of 5
CPWD that the petitioner has been declared medically unfit for the post of
Junior Engineer(Electrical) by the Medical Board of RML Hospital. Since
opinion of the Medical Board of RML Hospital was contrary to the medical
reports of eye specialists of AIIMS, Sardarjung Hospital and other premier
hospitals besides the fact that the petitioner had never experienced inability
in distinguishing colours in the Colour Vision chart and has Colour Vision
of High Order, the petitioner made a representation to respondent no.4 on
27.02.2009 to obtain a second medical examination conducted by a
different medical board in a different hospital. On 09.03.2009, the
Assistant Engineer(HQ) informed the petitioner that his request was under
consideration. The petitioner got his eyes checked at Venu Eye Institute
and Research Centre on 09.03.2009 which again found that his Colour
Vision was normal. On 13.03.2009, respondent no.3 informed the
petitioner that his appointment to the post of Junior Engineer (Electrical)
was withdrawn. Thereafter, on 16.03.2009 an official note was approved
by respondent no.3 forwarding the request of the petitioner for second
appeal to respondent no.2, the competent authority. Respondent no.3 on
27.03.2009 addressed a letter to respondent no.2 for taking appropriate
action with respect to petitioner's request for constituting a Special Medical
Board of different doctors in a different Hospital.
3. We have heard the counsel for the parties.
4. It will be useful to reproduce the report of the Medical Certificate issued by
Dr. Ram Manohar Lohia Hospital, New Delhi, which is as under:
"Dr. RAM MANOHAR LOHIA HOSPITAL, NEW DELHI
FORM OF MEDICAL CERTIFICATE
I hereby certify that I have examined Shri Mishra Rakesh
Vishwambhar a candidate for the employment in the Ministry
Department Office CPWD and cannot discover that he has any
W.P.(C) No.4913 /2014 Page 3 of 5
disease (Communicable of otherwise) constitutional weakness of
bodily deformity, except Nystagmus both eye unfit for the part.
I do not consider this a disqualification for the post of Junior
Engineer Shri Mishra Rakesh V. Age is according to his/her on
statement 24 years, and by appearance about 24 years.
Case seen by Eye Spl. And
declared unfit for the post.
UNFIT
Date 26.08.2008
Signature of candidate"
5. The short question, which arises for consideration, is whether there are any
reasons as to why the petitioner has been declared unfit for the post of
Junior Engineer(Electrical). We may also notice that a review medical
board was constituted, which simply gave the opinion "Candidate is unfit
for the post".
6. Keeping in view the contradictory medical opinion and also the fact that no
reason for declaring the petitioner unfit has been given, we dispose of this
writ petition with the following agreed directions:
(i) The petitioner will be examined by a Board of three Doctors of
Dr. Rajender Prasad Eye Hospital at All India Institute of
Medical Science.
(ii) The Hospital will give a report as to whether the petitioner has a
problem of Colour Vision. The Department, CPWD will
additionally produce the Recruitment Rules to enable the
Medical Board to give a specific finding with regard to the
fitness of the petitioner for the said post.
(iii) Let the report be sent to this Court within six weeks from
receipt of the order.
W.P.(C) No.4913 /2014 Page 4 of 5
7. We may notice that while issuing notice in the matter, respondents were
directed to keep one vacancy available for the post of Junior
Engineer(Electrical) in CPWD. Till the opinion of the Board is received
and for a period of three weeks thereafter, the post shall not be filled up to
enable the petitioner to take recourse to legal remedy in case the report is
adverse.
8. A copy of the order be sent to the Director, All India Institute of Medical
Science.
9. The petition is disposed of in above terms.
10. List on 11.12.2015 for compliance.
11. Dasti.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
SEPTEMBER 21, 2015
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