Ranjan Kumar vs Union Of India
2021 Latest Caselaw 148 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P. (S) No.2393 of 2020
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1. Ranjan Kumar, aged about 27 years, son of Banshi Ram, resident of Village, P.O. Lagma, P.S. Garhwa, District Garhwa

2. Sumit Kumar Tiwari, aged about 23 years, son of Late Manoj Kumar Tiwari, resident of Ward No.7, Village Gijna, Post- Tildag, P.S. Garhwa, Jharkhand-822114 .... .... .... Petitioners Versus

1. Union of India, Ministry of Home Affairs, through its Principal Secretary, North Block, New Delhi

2. Staff Selection Commission, through the Chairman, SSC, Block No.12, CGO Complex, Lodhi Road, P.O.+ PS. New Delhi, New Delhi-3

3. Director General, CRPF, Block No.2, CGO Complex, Lodhi Road, P.O.+ P.S. New Delhi, New Delhi-3

4. Regional Director (ER), Staff Selection Commission, 1st MSO Building (8th Floor), 234/4, Acharya Jagdish Chandra Bose Road, P.O.+P.S. Kolkata, Kolkata, West Bengal

5. The Deputy Inspector General (Recruitment), CRPF, Central Office, Block No.1, Lodhi Road, P.O.+ P.S. New Delhi, New Delhi-110003

6. The Director General (DG), 40th BN, ITBP, Village Sukurhuttu and Gagi, Circle/Post Kanke, P.O. Kanke, P.S. Gonda, Ranchi, Jharkhand-834002 With W.P. (S) No.2419 of 2020

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1. Vikash Kumar, aged about 21 years, son of Rajesavar Ram, resident of Village Jamui, P.S. Nagar Untari, District Garhwa

2. Madan Kumar, aged about 26 years, son of Dasrath Sah, resident of Village + Post Lagma, P.S. Garhwa, District Garhwa .... .... .... Petitioners Versus

1. Union of India, Ministry of Home Affairs, through its Principal Secretary, North Block, P.O.+P.S. New Delhi, New Delhi

2. Staff Selection Commission, through the Chairman, SSC, Block No.12, CGO Complex, Lodhi Road, P.O.+ PS. New Delhi, New Delhi-3

3. Director General, CRPF, Block No.2, CGO Complex, Lodhi Road, P.O.+ P.S. New Delhi, New Delhi-3

4. Regional Director (ER), Staff Selection Commission, 1st MSO Building (8th Floor), 234/4, Acharya Jagdish Chandra Bose Road, P.O.+P.S. Kolkata, Kolkata, West Bengal

5. The Deputy Inspector General (Recruitment), CRPF, Central Office, Block No.1, Lodhi Road, P.O.+ P.S. New Delhi, New Delhi-110003

6. The Director General (DG), 40th BN, ITBP, Village Sukurhuttu and Gagi, Circle/Post Kanke, P.O. Kanke, P.S. Gonda, Ranchi, Jharkhand-834002 .... .... .... Respondents With W.P. (S) No.2771 of 2020

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Nitish Kumar Yadav, aged about 21 years, son of Shri Pankaj Yadav, resident of Village Amdiha, Post Dhoni, Police Station, Amdiha Dhamini, District Dumka .... .... .... Petitioner Versus

1. The Union of India

2. The Director General, C.R.P.F. (Recruitment Branch), East Block-07, Level-4, Sector 01, R.K. Puram, Post R.K. Puram, Police Station R.K.

Puram, District New Delhi

3. The Chief Medical Officer, (S.G.)-cum-Medical Officer, (RME Appeal Panel) RME CT/GD-18 (Board-I & Board-II), 40th BN, ITBP Ranchi, Post Bariatu, Police Station Bariatu, District Ranchi

4. The Commandant, 136 Battalion, C.R.P.F. camp, Bazar Samittee, Post Hazaribagh, Police Station Hazaribagh, District Hazaribagh

5. The Staff Selection Commission, Easter Region through its Secretary, officiating from JPSC Office, Circular Road, Ranchi, Post Lalpur, Police Station Lalpur, District Ranchi .... .... .... Respondents

With W.P. (S) No.2828 of 2020

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Ramnath Paswan, aged about 27 years, son of Lalji Paswan, R/o Village Kadailiya, P.O. Jarhi, P.S. Dandai, District Garhwa, Jharkhand 822114 .... .... .... Petitioner Versus

1. Union of India, Ministry of Home Affairs, through its Principal Secretary, North Block, New Delhi

2. The Staff Selection Commission, through the Chairman, SSC, Block No.12, CGO Complex, Lodhi Road, New Delhi-3

3. The Director General, CRPF, Block No.2, CGO Complex, Lodhi Road, New Delhi-3

4. The Regional Director (ER), Staff Selection Commission, 1st MSO Building (8th Floor), 234/4, Acharya Jagdish Chandra Bose Road, Kolkata, West Bengal

5. The Deputy Inspector General (Recruitment), CRPF, Central Office, Block No.1, Lodhi Road, New Delhi-110003

6. The Director General (DG), 40th BN, ITBP, Village Sukurhuttu and Gagi, Circle/Post Kanke, P.O. Kanke, Ranchi, Jharkhand-834002 .... .... .... Respondents

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioners : Mr. Shresth Gautam, Advocate (In WPS Nos.2393/2020, 2419/2020 & 2828/2020) Ms. Ritu Kumar, Advocate Mr. Lalit Yadav, Advocate (In WPS No.2771/2020) For the Respondent-UOI : Mr. Rajiv Sinha, A.S.G.I. (In all cases) Ms. Shreesha Sinha, A.C. to A.S.G.I.

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11/12.01.2021 Heard Mr. Shresth Gautam and Ms. Ritu Kumar learned counsel for the petitioners as well as Mr. Rajiv Sinha, learned counsel for the respondent-Union of India assisted by learned counsel, Ms. Shreesha Sinha.

These writ petitions have been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

These batch of writ petitions arise out of common question of facts and law and with consent of learned counsel for the parties, the writ petitions were heard together and has been decided by this common judgment.

W.P. (S) No.2393 of 2020 (Ranjan Kumar and Sumit Kumar Tiwari Versus Union of India & Others) Pursuant to advertisement of Staff Selection Commission bearing Advertisement No.F.No.3/2/2017-P&P-I for the post of Constable (GD) in Central Armed Police Forces (CAPFs), NIA and SSP and Rifleman (GD) in Assam Rifles (AR) for total 54,953 posts. The petitioners appeared in the said examination and was medically examined which is called Detailed Medical Examination (DME). In the Detailed Medical Examination, the petitioner no.1 was found unfit and reasons have been assigned "haemorrhoids and varicose veins over left lower limbs" that is why the petitioner no.1 was not selected. The petitioner no.2 was found unfit due to defective colour vision. On these grounds, the petitioners were not selected. The petitioners in terms of the advertisement filed the appeal for Review Medical Board. The appeal was rejected on the ground that as per description in Form-3, that rejection still exists and it was said that there was no error of judgment in the findings of DME. So far the petitioner no.2 is concerned, one Form-1 is not attached with the affidavit. Aggrieved with this, the petitioners have approached this Court.

W.P. (S) No.2419 of 2020 (Vikash Kumar and Madan Kumar Versus Union of India & Others In the said examination, these two petitioners have also applied. So far DME of petitioner no.1 is concerned, he was found unfit due to "diminished vision 6/9 in both eye and contact of right finger due to bones and the petitioner no.2 was found unfit due to "defective colour vision, scotic spiral generology and cubitus valgus over left elbow". The petitioners preferred appeal for Review Medical Board which was rejected as specialist opinion not obtained and so far petitioner no.2 is concerned one additional signature of candidate is not attested in column 3. Aggrieved with this, the petitioners have preferred this writ petition.

W.P. (S) No.2771 of 2020 (Nitish Kumar Yadav Versus Union of India & Others) In the said examination, the petitioner appeared and the petitioner was found unfit due to B/L hydrocele and B/L nasal palylp. The petitioner

filed appeal for Review Medical Board calling the criteria attaching Form 3 which was rejected on the ground that description in Form 3 (Medical Fitness Certificate), the cause of rejection still exists and there is no error of judgment in findings of DME. Aggrieved with this, the petitioner has preferred this writ petition.

W.P. (S) No.2828 of 2020 (Ramnath Paswan Versus Union of India & Others) In the said examination, the petitioner appeared and wherein in DME was held and the petitioner was found unfit due to diminished vision in both eyes. Aggrieved with this, the petitioner has filed appeal before Medical Board which was rejected on the ground that the reason for medical fitness in DME was not attached (Form 1). Aggrieved with this, the petitioner has approached this Court.

Learned counsel for the petitioner vehemently argued that in terms of Clause 9(E) of recruitment scheme, it is incumbent upon the appellate authority if further examination by a Government Doctor and any specialized is submitted with the information that doctor in Form 3, it was incumbent upon the appellate authority to send the petitioners for medical review. They draw the attention of the Court to Form 1 and jointly submit that in Form 1, Clause 2 wherein it is stated that "In case he/she prefers to file an appeal against the findings of medical examination, he/she is advised to apply for review medical examination in the enclosed Form No.2". They submit that in view of Clause 2 itself, the petitioners were notified by way of appointment scheme for filing the appeal and in that view of the matter, the petitioners have approached by way of filing appeal for Review Medical Board.

In W.P. (S) No.2828 of 2020, a notice has been attached at page 71 of the writ petition by which it has been provided that the Review Medical Board are required to file by way of annexing Form No.2 and Form No.3 and the check list is already there in Form No.2. They submit that the requirement have been fulfilled and the petitioners are entitled for Review Medical Board.

Learned counsel for the petitioners relied the case of Rupesh Kumar Versus Union of India & Others passed in Writ Petition No.5049 of 2020 along with analogous cases passed in Writ-A No.5181 of 2020, Writ-A No.5558 of 2020 and Writ-A No.5654 of 2020 passed by Allahabad High Court and the case of the petitioners is fully covered in view of this judgment. They further relied in the cases of Dilip Kumar Kushwaha and five

others Versus Union of India & Others passed in Writ-A No.9364 of 2020, Birendra Kumar Versus Union of India & Others; Writ -A No.10202 of 2020, Pintu Kumar Modi Versus Union of India & Others; Writ -A No.7472 of 2020 and Rajan Versus Union of India & Others; Writ -A No.9425 of 2020 (All the cases of Allahabad High Court). The case of petitioners are fully covered as these cases have arisen out of the same examination for Review Medical Board.

Per contra, Mr. Rajiv Sinha, learned counsel for the respondent- Union of India assisted by learned counsel, Ms. Shreesha Sinha submitted that there is no change of situation for review in view of facts stated in the counter affidavit. He took the Court to Form 1 in each of the cases and submitted that in W.P.(S) No.2393 of 2020, the petitioner no.1 for haemorrhoids and varicose veins over left lower limbs and petitioner no.2 due to defective colour vision'; in W.P.(S) No.2419 of 2020, the petitioner no.1 for diminished vision 6/9 in both eye and contact of right finger due to bones and the petitioner no.2 was found unfit due to "defective colour vision, scotic spiral generology and cubitus valgus over left elbow"; in W.P.(S) No.2773 of 2020 due to B/L hydrocele and B/L nasal palylp and the petitioner in W.P.(S) No.2828 of 2020 for diminished vision in both eyes have been found unfit and subsequent filing of From 3 has not improved the case of the petitioner that is why the Review Medical Board was not required in the cases of the petitioner and rightly rejected. By way of referring the case of Ramnath Paswan (W.P. (S) No.2828 of 2020), he submits that the case was rejected on the ground that Form 1 was submitted along with Form 2 and 3 which was requisite precedent for filing the said appeal for calling on the Review Medical Board and that is why that has been rejected. Learned counsel, Mr. Rajiv Sinha further argued that in Form 3, in one of the case it is not disclosed about the specialization of Doctor that is why Form is also not in terms of Rule, Regulations and Schemes. Learned counsel, Ms. Shreesha Sinha has also pointed out in the case of Nitish Kumar Yadav (W.P. (S) No.2771 of 2020) and distinguished the finding of DME and Medical Board and the Medical Board's Officer by way of Form 3 and submits that there is apparent error in Form 3 and the case of the petitioners is fit to be rejected. Maintainability of one writ petition has also been argued on the ground that two petitioners have filed their reliefs in one writ petition that has been for confusing the Court that is why the writ petitions were not maintainable.

The Court has considered the arguments of learned counsel for the parties at length and has gone through the materials on record. The provisions of Review Medical Examination contained in Clause 9 (E) of the recruitment scheme which is incorporated hereinbelow:-

"E. Review medical examination (RME): Ordinarily there is no right of appeal against the findings of the Recruiting Medical Officer or Initial Medical Examination. If any Medical Certificate is produced by a candidate as a piece of evidence about the possibility of an error of judgment in the decision of Initial Medical Board/ Recruiting Medical Officer, who had examined him/her in the first instance i.e. DME, an appeal can be accepted. Such Medical Certificate will not be taken into consideration unless it contains a note by the Medical Officer from Government District Hospital or above along with registration no. given by MCI/ State Medical Council, to the effect that it has been given in full knowledge of the fact that the candidate has already been rejected and declared unfit for service by CAPF Medical Board, or the recruiting medical officer. If the appeal of a candidate is accepted by CAPF Appellate Authority, his/her Review Medical Examination will be conducted by CAPF RME Board. The Decision of the CAPF's Review Medical Boards will be final. No appeal will be entertained against the finding of the second medical i.e. Review Medical Examination."

After going through the ingredients of Clause 9(E), it has been rightly summarized by the Allahabad High Court in Writ -A No.5049 of 2020 with analogous cases. The essential ingredients of Clause 9(E) can be summarized thus:-

A. Candidate preferring appeal had to produce Medical Certificate as a piece of evidence about the possibility of an error of judgment in the decision of Initial Medical Board/Recruiting Medical Officer, who had examined the candidate in the first instance.

B. Such medical certificate would be taken into consideration only if it contains a note by the medical officer from Government District Hospital or above along with registration number given by MCI/State Medical Council, to the effect that it has been given in full knowledge of the fact that the candidate had already been rejected and declared unfit for service by CAPF Medical Board, or the recruiting medical officer.

C. If the appeal is accepted by CAPF Appellate Authority, the candidate's review medical examination will be conducted by CAPF RME Board.

D. The decision of the review medical board would be final.

Ongoing through the provisions made in Clause 9(E) of the recruitment scheme, it is crystal clear that medical certificates are required to be annexed with the appeal, should be by the medical officer of Government District Hospital or above only. In the said Clause it is not mentioned that Medical Officer who issued certificate should be specialized in the field. It has been further disclosed therein that the candidates were required to submit medical certificate from a medical practitioner who should be specialist medical officer of Government District Hospital and

above as per Form No.3. A sample of Form 3 is part of Writ Petition No.2393 of 2020 is quoted hereinbelow:-

FORM NO.3 OF CONSTABLE (GD) EXAM-2018 MEDICAL FITNESS CERTIFICATE

Medical Practitioner to attest Photograph Thumb impression of candidate

Certified that Mr./Ms. RANJAN KUMAR S/o Shri BANSHI RAM Age 27 Yrs. Years, a candidate of Constable (GD) Exam-2018 in CAPFs whose photo and thumb impression are appended above duly attested by me was examined by me at Hospital - Sadar Hospital GARHWA, date 20.06.2020.

2. I the undersigned, have the knowledge that Mr./Ms RANJAN KUMAR S/O Shri BANSHI RAM has been declared Medically Unfit by the Medical Officer for Constable (GD) Exam-2018 in CAPFs due Haemorrhoids and various venus over left lower thumb to...................

3. In my opinion this is an error of judgment due to following reasons:- No fresh combination patient side but on DME protect scope WN and far LF. Lower limb various vein in depth middle on standing position for which advanced pt.

4. After due examination, I declare him/her medically fit for the said post. Dated: 20-06-2020 20-06-2020 Dr. Rajesh Kumar Signature & Name with seal of Specialist Medical Officer of concerned field Sadar hospital Garhwa Designation.........................

Name & Address of Govt. Hospital (District Hospital and above).......................... Signature and name of the candidate (In presence of Medical practitioner) Attested by Sadar hospital Garhwa 20.08.202 Signature & Name with seal of specialist Medical Officer of concerned field Note: 1. The findings of the Medical should be supported by Medical reports/documents wherever applicable.

2. The photograph thumb impression and signature of the candidates should be attested by Medical Practitioner giving this Medical fitness certificate. Unattested forms shall be summarily rejected.

3. CAPFs shall not be responsible for postal delay.

The check list in Form 2 suggests as under:

i. Medical Fitness certificate in Form No.3 of Constable (GD) Exam-2018. Certificate in other format will be rejected. ii. Demand draft of Rs.25/- in favour of Dy. Inspector General, Sector Headquarter.

iii. Payable at Bengaluru (Address as mentioned in Form No.1 of Constable (GD) Exam-2018. Drafts payable at the place other than as mentioned in Form No.1 of Constable (GD) Exam-2018 will be rejected.

iv. Candidates are advised to affix stamp of Rs.42/- if they desire that call letter for review medical examination is to be sent by speed post. The department will not accept responsibility for postal delay/missing.

Thus, in view of the above scheme, the findings of medical board are required to be stipulated by medical reports documents wherever applicable in all the cases. From 3 and Form 2 have been produced in the appeal for sending in revisional medical examination. However, in one of the writ petition Form 1 is annexed with the writ petition. In W.P. (S) No.2828 of

2020, a notice for inviting Review Medical Board has been published which is quoted hereinbelow:-

NOTICE IN CASE OF CANDIDATE UNFIT IN DETAILED MEDICALEXAMINATION (DME) PREFERS TO FILE AN APPEAL AGAINST THE FINDINGS OF MEDICAL EXAMINATION HE/SHE IS ADVISED TO APPLY FOR REVIEW MEDICAL EXAMINATION IN THE FORM NO. 2 PROVIDED TO YOU ALONG WITH DEMAND DRAFT FOR RS.25/- IN FAVOUR OF THE DIG, SHQ( BGLR) ANO, SBI VIJAYPURA, CODE: 11286 (ie. Appellate Authority) AFTER OBTAINING NECESSARY MEDICAL CERTIFICATE FROM THE MEDICAL PRACTITIONER AS PER FORM NO. 3 (PROVIDED TO YOU), SO AS TO REACH TO THE FOLLOWING ADDRESSEE WITHIN A PERIOD OF 15 DAYS FROM THE DATE OF MEDICAL EXAMINATION FAILING WHICH HIS/HER CANDIDATURE FROM CONSTABLE/GD EXAM 2018, SHALL BE TREATED AS CANCELLED WITHOUT ANY FURTHER NOTICE.

POSTAL ADDRESS OF DIG, SHO(BGLR) ANO, ITB POLICE The Dy. Inspector General, SHQ(BGLR) ANO, ITB Police.

Sundrahalli Camp. Vill- Sundrahalli, PO: Jangamkote, Sidhalagatta Taluk, Chikbailapur(Karnataka ) PIN: 562102

Thus, notice clearly suggests that From 1 was not required for filing for review. Only From 2 and Form 3 were required to be produced. In all the judgments of Allahabad High Court, these aspects of the matter has been considered and the respondent-Union of India was directed to send the petitioners of those cases for Review Medical Board. All these cases are identical to the cases of Allahabad High Court. Prima facie, it appears that the object unambiguously was to prevent frivolous appeals being filed. If the documents were found in order, the appeal could be accepted. The acceptance of the appeal would not mean that the candidate has been declared or accepted to be medically fit. It would only pave way for constitution of a Review Medical Board by the respondents. The candidates would thereafter be subjected to medical examination once again by the Review Medical Board and only if he is found fit that he would be moving to the next stage of recruitment.

In all the writ petitions, Form 3 has been issued. Their signatures are there. The name of candidates are there and reasons has also been provided that how they are medically fit. If the appeal is having sufficient documents, there is no reason why even for a slight issue with regard to incumbent upon the petitioners the Review Medical Board why cannot be allowed to be conducted and that will be very harsh on the candidates for any mild error by the DME and they will suffer irreparable loss and injury. Therefore, the appeal preferred by the petitioners for Review Medical Board

examinations were required to be dealt in terms of spirit of requirement scheme which has not been done in the cases in hand.

As a cumulative effect of the above discussion, the writ petitions succeed and are allowed.

The respondents are directed to constitute Review Medical Board for re-examination for the petitioners within a period of one week from the date of receipt/production of copy of this order.

These writ petitions are disposed of.

The Interlocutory Applications are also stand disposed of.

(Sanjay Kumar Dwivedi, J.)

Anit