Delhi High Court
Durga Singh vs Union Of India And Ors on 18 July, 2017
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 3391/2012
Date of decision :18th July, 2017
DURGA SINGH ..... Petitioner
Through: Mr.R.K.Saini, Adv.
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Ms.Barkha Babbar, Adv. for UOI
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (Oral)
CM 16595/2012
This is an application for condonation of 35 days delay in
re-filing the review petition. It is stated by the learned counsel
that by mistake he had attached the review petition with another
file.
For the reasons stated in the application, the same is
allowed.
Delay is condoned.
WP (C) 3391/2012 Page 1
Rev. Pet. 569/2012
1. We have heard the learned counsel for the review
petitioner and the respondents.
2. The petitioner had applied for recruitment as Head
Constable (Min.) in the Border Security Force. Having cleared
the written examination and physical test, the petitioner was
called and examined medically on 28.11.2011. He was declared
medically unfit on the ground of leucoderma vide memorandum
issued on 28.11.2011.
3. The rules postulate that ordinarily there was no right to
appeal, but the Government/Department on evidence placed
before them, that there was a possibility of error of judgment in
the decision of the medical authority, could allow re-
examination by the Review Medical Board.
4. The review petitioner had thereafter approached and was
examined in the RML Hospital, New Delhi on 1st December,
2011 by a specialist who had opined that the finding recorded
by the medical officer/authority declaring the petitioner as unfit
on account of leucoderma was an error of judgment. The
petitioner was also declared medically fit. The medical
certificate, however, further records that the "patient was having
linecur stable vitligo over the side of the chest as such is a
localized change does not include any systematic changes".
5. This certificate was submitted to the respondents, with a
request to constitute the Review Medical Board.
WP (C) 3391/2012 Page 2
6. The respondents did not constitute a Review Medical
Board, on the pretext and ground that this was not a case of
error of judgment. This was not withstanding the medical
certificate dated 1st December, 2011, to the contrary.
7. The petitioner had thereupon filed WP(C) no.3391/2012,
which has been dismissed vide order dated 29 th May, 2012 of
which review is sought by the present application. Learned
counsel for the respondents who was present on advance notice,
had submitted before the Court on 29.05.2012 that the
certificate dated 1st December, 2011 would not help and aid the
petitioner, for he was suffering from another type of skin
disease, namely linecur stable vitligo. The writ petition was
dismissed for the reasons recorded in para 7 of the order dated
29th May, 2012, which reads as under:-
"7) This Court has heard the learned counsel for
the parties. This is not disputed that the petitioner
produced a medical certificate wherein it is stipulated
that the Leucoderma as opined by the Medical Board of
the respondent was on account of an error of judgment,
however, the same medical certificate also stipulates that
the petitioner is suffering from another skin disease.
Though the petitioner's certificate does qualify the
Vitiligo as localized, however, even such a localized
Linecur stable vitiligo over side of chest disease does not
make the petitioner medically fit according to the
respondent's standards. The learned counsel for the
petitioner is unable to show that a person having Linecur
stable vitiligo over side of chest disease, a localized
disease which is a form of skin disease will be medically
WP (C) 3391/2012 Page 3
fit. If the certificate obtained by the petitioner from the
specialist opines that the petitioner obtained by the
petitioner from the specialist opines that the petitioner is
suffering from skin disease, then the petitioner cannot
claim that he should be medically examined by a 'Review
Medical Board' to ascertain his medical fitness as his
own certificate shows that he is medically unfit."
8. On being asked, learned counsel for the respondents has
stated that the linecur stable vitligo is not one of the specified
diseases mentioned in the negative list. It is stated that
candidates suffering from chronic skin disease were not eligible
and declared unfit.
9. Having considered the contentions raised we find that the
order dated 29th May, 2012 does require review for it is not the
case of the respondents that Linecur stable vitiligo was
classified a chronic skin disease and, therefore, the petitioner
was unfit. Whether or not the said medical condition could be
classified and treated as a chronic disease and, therefore, the
petitioner was unfit would have to be decided by the medical
officer or the Review Medical Board. It will be impossible for
the Court to opine and decide, whether the said medical
condition would be a disqualification. Pertinently, the medical
certificate relied by the petitioner dated 1st December, 2011
states that the petitioner was medically fit for the said post. It
specifically records and holds that the finding that petitioner
was suffering from leucoderma was an error of judgment.
Moreover, the clause relating to medical review states that there
WP (C) 3391/2012 Page 4
should be a possibility of error of judgment. The word
'possibility' cannot be ignored and is of significance. The final
finding on fitness or unfitness is to be given by the Review
Medical Board.
10. Possibly, the petitioner at that time of hearing was not
prepared to argue and make submission whether the medical
condition Linecur stable vitiligo is a chronic skin disease or
not, as the said aspect had not been examined by the
respondents i.e. the medical officer or the Review Medical
Board.
11. In view of the aforesaid, we feel that there is an apparent
error in the order dated 29th May, 2012 which justifies review as
there is no opinion or formation of belief that the medical
condition "Linecur stable vitiligo" would fall in the category of
'chronic skin disease'. Till the said finding or opinion is given
by the medical officer or the Review Medical Board of the
respondents, the question of fitness cannot be decided. The
petitioner's medical fitness was required to be considered by the
Review Medical Board.
12. Accordingly, we allow the present review application and
direct the respondents to constitute a Review Medical Board. In
view of the lapse of time, it will be open to the respondents to
completely re-examine the medical fitness of the petitioner, if it
is permitted and mandated as per law. Learned counsel for the
review petitioner has consented to the same. The aforesaid
WP (C) 3391/2012 Page 5
exercise would be completed within three months from the date
copy of this order is received.
13. Review application is allowed in the aforesaid terms.
Dasti to both the counsel for the parties.
SANJIV KHANNA, J
NAVIN CHAWLA, J
JULY 18, 2017
RN
WP (C) 3391/2012 Page 6
