Aksha Bee vs Union Of India
2023 Latest Caselaw 5224 MP

                                                       1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT INDORE
                                                  BEFORE
                           HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                     &
                              HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                                            ON THE 29 th OF MARCH, 2023
                                            WRIT APPEAL No. 421 of 2023

                          BETWEEN:-
                          AKSHA BEE W/O ASLAM KHA, AGED    25 YEARS,
                          OCCUPATION: STUDENT R/O BEHIDN OLD THANA
                          BAGUCHI MOHALLA NARSINGARH DISTT. RAJGARH
                          (MADHYA PRADESH)

                                                                               .....APPELLANT
                          (SHRI ARVIND PARMAR, LEARNED COUNSEL FOR THE APPELLANT)

                          AND
                          1.    UNION OF INDIA THROUGH CHAIRMAN STAFF
                                SELECTION COMMISSION BLOCK NO. 12 CGO
                                COMPLEX LODHI ROAD NEW DELHI - 110003

                          2.    DIRECTOR    GENERAL CRPF (RECRUITMENT
                                BRANCH) EAST BLOCK 12, CGO COMPLEX, LODHI
                                ROAD, NEW DELHI-110003

                          3.    DEPUTY DIRECTOR (MPR) STAFF SELECTION
                                COM M ISSION J-5 ANUPAM NAGAR, RAIPUR
                                CHHATTISGARH - 492007

                          4.    COMMANDANT (T & TG & CO CRD) CSWT, BSF
                                INDORE (MADHYA PRADESH) 45005

                          5.    SENIOR     COMMANDANT        (CHAIRMAN)
                                RECRUITMENT BOARD CISF UNIT BHEL BHOPAL
                                (MADHYA PRADESH)

                                                                            .....RESPONDENTS
                          (SHRI HIMANSHU JOSHI, LEARNED COUNSEL FOR THE RESPONDENTS .

                                This appeal coming on for admission this day, JUSTICE SUSHRUT

Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 4/1/2023
3:54:06 PM
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                          ARVIND DHARMADHIKARI passed the following:
                                                                ORDER

Heard on the question of admission and interim relief. This writ appeal under Section 2(1) of the Madhya Pradesh Uccha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed assailing the order dated 02.01.2023 passed in W.P. No. 18707/2020 whereby the writ petition challenging the order declaring the appellant unfit for the post of Constable(GD) due to over weight has been dismissed by the learned Single Judge.

The brief facts of the case are that the an advertisement was issued by the Staff Selection Commission on 21.07.2018 inviting applications for the post of

appointment on the post of Constable (GD). In pursuance to the advertisement, the appellant applied and she was found to be eligible to appear in the written examination. Thereafter, she qualified the examination and was called for physical efficiency/standard test. The appellant cleared all the tests including running and other parameters except she was found to be overweight by 13 kg. Accordingly, she was declared unfit and was directed to fulfill the weight criteria at the time of Departmental Medical Examination. When the Departmental Medical Examination was conducted, appellant was already pregnant and had put on more weight, therefore her candidature was rejected being over weight

having BMI 25.4 kg/m2 , Weight-65 kg and Height 160 cm. Thereafter, the appellant filed representation before the authorities to declare the appellant to be temporarily unfit till the delivery of the child and her review medical examination be deferred for some time. The said request was rejected. Being aggrieved,the appellant preferred writ petition which was dismissed by the learned Single Judge on the ground that at the time of initial PET/PST, appellant was found Signature Not Verified Signed by: SEHAR HASEEN Signing time: 4/1/2023 3:54:06 PM

overweight by 13 kgs and was declared unfit when she was not pregnant. When the review Department Medical Examination was conducted, the appellant was pregnant and had gained more weight. Had the appellant pregnant at the time of first medical examination, then certainly under Clause B(VIII) of the General Medical Guidelines, the appellant could have been declared unfit temporarily and thereafter could have been examined. The learned Single Judge also taking into consideration, the judgment passed by the Division Bench of Rajasthan High Court passed in the case of Laxman Devi Vs State of Rajasthan reported in 2000(18) 3 RLW 2259(Rajasthan) and another judgment of Single Bench in case of Raju Devi Vs. State of Rajasthan & Ors. reported in 2019(1)RLW 847(Rajasthan) had considered wherein the Review Medical Examination could not be conducted due to Covid-19 and the same was conducted at a belated stage when the appellant therein became pregnant. The Rajasthan High Court in such circumstances allowed for re-medical examination after the pregnancy was over, but in the present case, the appellant was not pregnant at the time of first Department Medical Examination and was found to be overweight by 13 kg. After she became pregnant, her weight was increased by further 02 kg. The review medical examination was rejected on the ground that at the time of review medical examination, she was carrying pregnancy is of no concern for declaring her unfit because at the initial stage itself, she was

over weight. Being aggrieved by the dismissal of writ petition, now the appellant is before this Court in the instant intra Court appeal.

Learned counsel for the appellant submitted that learned Single Judge has failed to appreciate the provision of review medical. The judgements relied by the appellant have not been properly appreciated by the learned Single Judge. Under such circumstances, the impugned order deserves to be set aside. Signature Not Verified Signed by: SEHAR HASEEN Signing time: 4/1/2023 3:54:06 PM

On the other hand, learned counsel for the respondent opposed the prayer and prays for dismissal of the writ appeal.

Heard, learned counsel for the parties and perused the record. The learned Single Judge after detailed hearing and consideration of each facts and circumstances of the case, as also the General Medical Guidelines, has rightly rejected the writ petition. Even, the judgments relied upon by learned counsel for the appellant are distinguishable on facts. This Court finds no error apparent on the face of the record to interfere with the findings of the learned Single Judge. The learned Single Judge has exercised its jurisdiction in accordance with law. This appeal being bereft of merits and substance is hereby dismissed.

                               (S. A. DHARMADHIKARI)                      (PRAKASH CHANDRA GUPTA)
                                        JUDGE                                      JUDGE
                          sh




Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 4/1/2023
3:54:06 PM