Delhi High Court
Radesh Singh vs Union Of India & Anr on 15 March, 2018
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9829/2016
RADESH SINGH ..... Petitioner
Through: Mr.Shanker Raju and
Mr.Nilansh Gaur, Advocates
with petitioner in person.
versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr.Dev.P.Bhardwaj, CGSC for
UOI with Mr.Manoj Kumar,
Medical Officer.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE PRATIBHA RANI
ORDER
% 15.03.2018
1. The present petition has been filed by the petitioner, who is
aggrieved by the rejection of his candidature in the OBC category in
respect of the post of a Constable (Driver) in the respondent
No.2/ITBP, pursuant to an advertisement issued in January, 2015,
inviting applications for 472 posts of Constable (Drivers) out of which
95 posts were earmarked for OBC candidates.
2. The admitted facts of the case are that in January, 2015, the
respondent No.2/ITBP issued an advertisement, inviting applications
from the candidates for recruitment to the post of Constable (Driver).
The petitioner, an OBC candidate, had applied for appointment to the
subject post on 29.06.2015. He had qualified the written test and the
physical test on 14.12.2015. On 20.06.2016, the petitioner was called
for a medical examination at Chandigarh. He underwent the medical
examination on 22.07.2016, where he was declared unfit on account of
a medical infirmity, namely, „Hypospadias‟. On 25.07.2016, the
petitioner applied for a re-medical examination. On 31.08.2016, he
was summoned by the Appellant Medical Board at the Base Hospital,
ITBP, Delhi. Vide order dated 17.09.2016, the Appellate Medical
Board referred the petitioner to the Medical Board at Safdurjung
Hospital, New Delhi where the attending Doctor (M.S. Surgery -
Urology) observed as follows:
"He does not have any problem in erection and has no
Chordee/Stricture along. He is medically fit."
3. Thereafter, the petitioner did not hear from the respondents at
all and after waiting till October, 2016 he filed the present petition.
4. Notice was issued on this petition on 24.10.2016 and a counter
affidavit has been filed by the respondent stating inter alia that after
taking into consideration the expert medical opinion obtained from
Safdarjung Hospital, New Delhi, and on examining the relevant
provisions of the Ministry of Home Affairs Recruitment Revised
Guidelines issued in the year 2014, the petitioner was declared
medically unfit in view of para XIII (3)(c) which states as follows:-
"Penis should be examined for any wart, ulcer,
discoloration discharge or tumour and these cases are to
be rejected. The cases of hypospadias and epispadias or
meatal stenosis should also be rejected. The individual
be asked to retract theprepural skin and if failed, such
cases of phimosis should be rejected."
5. After examining the counter affidavit filed by the respondents,
the predecessor Bench passed an order dated 17.05.2017, directing the
respondents to consider the petitioner's representation dated
22.04.2017, notwithstanding the pendency of the present petition and
communicate the decision taken within a period of eight weeks.
6. Learned counsel for the respondents states that in compliance
with the aforesaid directions, the DIG (Personnel and Recruitment),
North-West Frontier Headquarters, ITBP, passed an order dated
22.06.2017, stating inter alia that there is no provision to consider a
second appeal except in cases where a candidate has been declared
medically unfit on account of "Visual Acuity". Learned counsel states
that in the instant case, the petitioner has not been declared unfit on
account of "Visual Acuity" and therefore, he does not come within the
ambit of the aforesaid Rules and in the above circumstances, decision
of the Review Medical Board of ITBP shall have to be treated as final.
A copy of the order dated 22.06.2017 passed by the respondents
rejecting the petitioner's representation dated 22.04.2017 is taken on
record.
7. Pertinently, the decision taken by the Review Medical Board on
receiving the opinion of the Medical Board, Safdarjung Hospital,
Delhi has not been placed on record. Nor is learned counsel aware of
the said decision. It is also relevant to note that on 06.11.2016, the
petitioner had undergone a surgery at the Jindal Super Speciality
Hospital at Bharat Pur, Rajasthan for treating the condition of
„Hypospadias‟.
8. Mr.Shanker Raju, learned counsel for the petitioner hands over
a copy of the petitioner's discharge summary as also a certificate
issued by the treating doctor at Jindal Super Speciality Hospital stating
that the petitioner was successfully operated for „Hypospadias‟. The
aforesaid documents are taken on record.
9. Learned counsel for the petitioner submits that the petitioner has
been pinning his hopes on being selected to the subject post
particularly since he had cleared the written test, physical test and skill
test. He states that by now the petitioner has crossed the age bar of 26
years prescribed for OBC candidate and if not selected this time, he
would not get any further opportunity to apply to the respondent/ITBP
for recruitment to the subject post. It is thus requested that in the
peculiar facts of this case, the Court may direct the respondents to
arrange a Review Medical Board to examine the petitioner at any
Force's hospital to verify the status of his medical fitness in respect of
„Hypospadias‟.
10. After carefully considering the submissions made by learned
counsels for the parties and examining the pleadings on the record, we
are of the opinion that the issue at hand can be resolved if the
respondents are directed to approach the Army R & R Hospital, Delhi
for constituting a Medical Board to examine the petitioner for the
medical condition of „Hypospadias‟ and submit a report with regard to
his medical fitness as on date. Ordered accordingly.
11. Directions are issued to the respondent No.2/ITBP to give a
written intimation of the date and time, on which the petitioner shall
present himself at the Army R&R Hospital, New Delhi, for being
examined for the medical condition of „Hypospadias‟. Both the parties
shall remain bound by the decision taken by the Army R & R
Hospital.
12. The report of the Army R&R Hospital shall be forwarded
directly to the respondent No.2/ITBP with a copy marked to the
petitioner. In the event the said report clears the petitioner of the
condition for which he has been disqualified, then the respondent
No.2/ITBP shall appoint him to the subject post, subject to his
fulfilling all other conditions as prescribed. The petitioner shall
however not be entitled to claim seniority or any consequential
benefits, if so recruited.
13. The petition is disposed of, with no orders as to costs. We make
it clear that the above order has been passed in the peculiar facts and
circumstances of the case and shall not be cited as a precedent in the
future.
14. A copy of the order be given DASTI to the learned counsel for
the respondents to make compliance.
HIMA KOHLI, J.
PRATIBHA RANI, J.
MARCH 15, 2018
„hkaur/st‟
