Delhi High Court
Deepak Kumar vs Union Of India And Anr. on 19 November, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 19th November, 2020.
+ W.P.(C) 2355/2020
DEEPAK KUMAR ..... Petitioner
Through: Mr. Ajay Verma, Advocate.
Versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Piyush Beriwal, Mr.Neeraj, Mr.
Ankit Raj, Mr.Sahaj Garg, Ms.
Vandana Dewan, Advocates for R-1
& 2.
Md. Abhus Salam, Asst.
Commandant, CISF, Mr. Amrit Pal,
Inspector Mr. Mithilesh Kumar, SI
and Mr. Rakesh Kumar Baitha, SI,
CISF.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
1. The petitioner, a candidate for recruitment to the post of
Constable/Driver and Constable/Driver-cum-Pump Operator (Driver for Fire
Services), pursuant to the advertisement published between 10th and 16th
February, 2018 inviting applications for the said posts in the respondents
CISF, has filed this petition impugning the order dated 17th May, 2019 of the
Medical Board and the order dated 4th July, 2019 of the Review Medical
W.P.(C) 2355/2020 Page 1 of 6
Board, declaring the petitioner 'unfit' and seeks mandamus directing the
respondents CISF to consider the candidature of the petitioner for the
aforesaid posts.
2. The petition came up first before this court on 3rd March, 2020 i.e.
after nearly nine months of the date when the petitioner appeared before the
Review Medical Board and was declared 'unfit'. However since the Division
Bench before which the petition was listed did not assemble on 3rd March,
2020, the petition was adjourned to 16th March, 2020 and on which date,
owing to prevalent pandemic the petition was adjourned to 5th May, 2020.
Thereafter the petition was being adjourned from time to time, again owing
to the prevalent pandemic and the petitioner did not take any steps for
having the petition listed.
3. The petitioner ultimately filed CM No.24510/2020 for early hearing
and which came up before this Court on 1st October, 2020 and finding that
the petitioner himself in the application had stated that the training of the
recruited candidates was scheduled to commence in 2020, it was felt that the
recruitment process was over. We accordingly enquired from the counsel for
the respondents, who informed that the recruitment process inviting
applications aforesaid for the year 2017 was long since over.
4. The counsel for the petitioner, on 1st October, 2020 contended that
though the petition was filed first on 14th February, 2020 but was under
objection and owing whereto could not be listed till 3rd March, 2020.
However on 3rd March, 2020 also the counsel for the petitioner sought
adjournment to argue the petition on merits. Directing the respondents CISF
to file a short affidavit disclosing the date when the recruitment process
initiated vide the advertisement aforesaid came to a close and further
W.P.(C) 2355/2020 Page 2 of 6
directing personal presence of the personnel/officer of the CISF in the know
of facts along with the records of medical examination carried out by the
Medical Board, the petition was adjourned to 6th November, 2020. On 6th
November, 2020, the counsel for the respondents CISF on the basis of the
affidavit filed stated that the recruitment process was concluded for 447
candidates as far back as on 2nd September, 2019. However, the counsel for
the petitioner on that date drew our attention to letter dated 11th September,
2020 filed along with CM No.24510/2020 inter alia to the effect that a list
of 44 Constables/Driver and 28 Constables/DCPO was prepared and their
training was to commence in the month of December, 2020. The counsel for
the respondents CISF appearing on that date was unable to respond to the
aforesaid and the hearing was adjourned to today.
5. The counsel for the respondents CISF today informs that though the
recruitment process for 447 candidates was concluded on 2nd September,
2019 but 72 vacancies remained and pursuant to direction in another writ
petition filed in this Court, the said 72 vacancies were directed to be filled
and in pursuance thereto, the letter dated 11th September, 2020 was issued.
On further enquiry, it is informed that the Medical Board for filling up of the
additional seats has already concluded but the Review Medical Examination
is to be conducted shortly.
6. The aforesaid indicates that the recruitment process is still on and if
any error was to be found in the opinion of the Medical Board and the
Review Medical Board, a direction for examination of the petitioner can also
be issued. We have thus asked the counsel for the petitioner to argue, what
is wrong with the opinion of the Medical Board and the Review Medical
Board.
W.P.(C) 2355/2020 Page 3 of 6
7. The counsel for the petitioner, instead of arguing, has contended that
as evident from order dated 10th May, 2011 in W.P(C) 3125/2011 titled
Naresh Kumar Vs. Union of India, over 88% of the opinions of the
Medical Boards/Review Medical Boards were found erroneous on further
examination ordered by the Court and on that ground alone, the petitioner
should be given a chance for examination by the Research and Referral
Hospital, to determine his medical fitness.
8. In spite of our repeated asking, the counsel for the petitioner has not
argued what is wrong with the opinion of the Medical Board and the Review
Medical Board and is unable to tell even the ground on which the petitioner
was found to be unfit.
9. Merely because in the order aforesaid it has observed that in 88% of
the cases which had then come up before the Court the opinion of the
Medical Board, on further examination, was not accepted, is not a ground
for every candidate rejected on the ground of medical unfitness to be
ordered to be examined by Research and Referral Hospital at New Delhi. If
it were to be so, an order for winding up the Medical Examination by the
Medical Board and the Review Medical Board might be as well be passed
and the medical fitness for recruitment be directed to be conducted by the
Research and Referral Hospital alone. The said state of affairs cannot be
permitted.
10. We have in Priti Yadav Vs. Union of India 2020 SCC OnLine Del
951, Jonu Tiwari Vs. Union of India MANU/DE/1524/2020, Vani
Viswanathan Vs. Union of India MANU/DE/1678/2020 and Shravan
Kumar Vs. Union of India 2020 SCC OnLine Del 924 held that for a
petitioner to succeed in impugning the opinion of the Medical Board and the
W.P.(C) 2355/2020 Page 4 of 6
Review Medical Board, the petitioner has to make out a case for this Court
to doubt the correctness of the opinion and merely at the asking, a third
opinion cannot be directed to be taken. Having exhaustively dealt with the
said aspect, need to elaborate further is not felt.
11. Since the counsel for the petitioner has not even argued why there is
error in the opinion of the Medical Board and the Review Medical Board,
though the need to record why the petitioner has been found unfit is not felt
but we may state that the Medical Board found the petitioner to be unfit for
two reasons i.e. (a) Anaemia having a haemoglobin count of 12.5 as against
the required range of 13 to 17; and, (b) Glanular Hypospadias. It appears
that the petitioner thereafter worked on his haemoglobin count, which can
easily be improved, in as much as the Appeal Medical Board, as per the
petitioner, found the petitioner to be medically unfit on account of Glanular
Hypospadias only. The petitioner has filed this petition on the basis of
Medical Certificates of Sawai Man Singh Hospital, Jaipur, Rajasthan
opining that though the petitioner has slight Glanular Hypospadias but no
intervention is required because of adequate size and because of not having
any complaint. Once the medical opinion obtained by the petitioner from
the medical expert of his own choice has also opined the petitioner to be
suffering from Glanular Hypospadias and has further opined that no
corrective surgery is required because the petitioner does not have
complaint, no case for doubting the opinion of the Medical Board and the
Appeal Medical Board, is made out. Rather, we have enquired from the
counsel for the petitioner, whether has studied the Medical Manual as per
which the Board and the Review Medical Board evaluate the candidates.
The answer is in the negative. In certain other cases coming up before us,
W.P.(C) 2355/2020 Page 5 of 6
we had occasion to examine the said Manual and found the same to be
providing that a candidate for recruitment would not be considered
medically fit for a period of six months also after undertaking corrective
surgery for Glanular Hypospadias. Once the doctor of the trust of the
petitioner also has found the petitioner to be suffering from Glanular
Hypospadias and the difference between his opinion and the opinions under
challenge is only of degree, no case for interference in writ jurisdiction is
made out.
12. There is no merit in the petition.
13. Dismissed.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J.
NOVEMBER 19, 2020
SU
