Shantanu Sharma vs Staff Selection Commi And Ors
2023 Latest Caselaw 224 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Writ Petition No.152/2015

Shantanu Sharma Son Of Shri Ramniwas Sharma, Aged About
24 Years, Resident of 36, Dadu Colony, Jagatpura, Jaipur
Rajasthan.
                                                                   ----Petitioner
                                   Versus
1.     Staff    Selection        Commission             Through      Chairman,
       Government Of India, Block 12, CGO Complex, Lodhi
       Road, New Delhi-110003.
2.     The Inspector General (HQ), Directorate General, I.T.B.P.
       Block No 2, C.G.O. Complex, Lodhi Road, New Delhi-
       110003.
3.     Commandant, 172 BN, B.S.F, Jodhpur, Rajasthan.
                                                                ----Respondents

For Petitioner(s)        :     Mr. M.S. Raghav, Adv.
For Respondent(s)        :     Mr. B.S. Chhaba, Deputy Solicitor
                               General of India with
                               Mr. Mukesh Dudi, Adv.



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                    Order

09/01/2023

1. The instant writ petition has been filed by the petitioner,

challenging the impugned Medical Report of the Medical Officer

dated 17.10.2014 and Review Medical Examination Report dated

13.12.2014, declaring the petitioner unfit for the post of Sub-

Inspector.

2. The petitioner has further prayed that the respondents be

directed to consider him for the appointment as per his merit

assigned to him in the selection process as undertaken by the

Staff Selection Commission.

(2 of 8) [CW-152/2015]

3. The brief facts in nutshell in the present writ petition are that

an advertisement was issued by the respondent No.1 i.e. Staff

Selection Commission in the Month of 2014 for undertaking the

recruitment process for the post of Sub-Inspector in Delhi Police,

CAPFs and ASI in Central Industrial Security Force.

4. The petitioner had applied in pursuance of said

advertisement and after considering the eligibility of the petitioner,

he was allotted a Roll Number to participate in the selection

process.

5. The petitioner has pleaded that he was called to appear in

Physical Standard Test/Physical Efficiency Test at Jodhpur and

since the petitioner had qualified PST/PET Examination,

accordingly, he was called for the medical examination.

6. The petitioner has pleaded that he appeared before the

Medical Centre at BSF, Jodhpur on 17.10.2014 and was examined

by a General Doctor in a very casual manner and he was found

'unfit' in medical for appointment.

7. The petitioner has pleaded that the memorandum, declaring

the petitioner unfit was supplied to him on 17.10.2014, where

three reasons were assigned i.e. Right DNS, Curving angle left

arm 18 degree and left inguinal hernia.

8. The petitioner has pleaded that immediately after receipt of

said memorandum, the petitioner applied before the Authorities

for conducting Review Medical Examination and on an appeal

being filed, he was again called for Review Medical Examination on

13.12.2014, however, the Review Medical Board also upheld the

finding of the Medical Officer.

9. The petitioner has pleaded that a communication sent to him

while giving the reasons for his deficiencies mentioned that the

(3 of 8) [CW-152/2015]

petitioner was operated less than 6 months prior to conducting the

medical examination and as such, the petitioner was held

ineligible for appointment.

10. Learned counsel for the petitioner has made the following

submissions:-

i) The rejection of candidature of the petitioner only on account

of operation of hernia being performed in less than 6 months prior

to the date of selection, is an arbitrary decision of the

respondents.

ii) The reason of declaring the petitioner unfit only on account

of having 'hernia' cannot be a basis to deprive a person from

appointment, who performed well in PST/PET Examination and as

such, overall fitness of the petitioner ought to have been

considered by the respondents.

iii) The petitioner has wrongly been diagnosed relating to his

disqualification on account of medical deficiency and the

Authorities have been very casual in conducting medical

examination as the same is evident from the first report which

was given to the petitioner, where as many as three reasons were

assigned and later on appeal being allowed of the petitioner, the

two earlier reasons of declaring the petitioner unfit i.e. Right DNS,

Curving angle left arm, were not found to be the very grounds to

declare the petitioner unfit and as such, the Authorities have failed

to discharge their duties in proper manner.

Learned counsel also places reliance on a judgment passed

by the Calcutta High Court in the case of Biswajit Saha Vs.

Union of India & Ors. (Writ Petition No.8185 (W) of 2016),

decided on 16.05.2016, wherein the High Court, under Article 226

of Constitution of India has ample power to direct the Authorities

(4 of 8) [CW-152/2015]

to undertake the Medical Examination of a candidate who is not

properly examined by the Authorities.

11. Per contra, learned counsel appearing for the respondent,

submitted that the Authorities have not committed any error in

respect of assessment of the petitioner for the purpose of medical

fitness certificate.

12. Learned counsel for the respondent submitted that the

guidelines which have been issued by the Ministry of Home Affairs

to check the parameters, have strictly been complied with and in

cases of 'inguinal hernia', the patients who have undergone for an

operation of hernia can only be accepted if one year has elapsed

since operation and in the present facts of the case, the petitioner

has undergone surgery of 'hernioplasty left side' on 21.10.2014

and accordingly as the same period was less than 6 months and

as the Authorities had no option except to declare the petitioner

medically unfit for the job.

13. Learned counsel further submitted that the initial report of

the petitioner had assigned three reasons for declaring the

petitioner medically unfit and on an appeal being filed, the Medical

Board was considerate and thoughtful and as such, they examined

the petitioner by following guidelines and also checked the

parameters and as such, it cannot be said that the Authorities

were dealing with the case of the petitioner with pre-

determination or they were to reject the candidature of the

petitioner without any basis as has been alleged in the petition.

14. Learned counsel for the respondent further submitted that

the petitioner has already been granted one opportunity and no

successive medical examination can be undertaken and it is for

the Expert Body to frame opinion on certain defined parameters

(5 of 8) [CW-152/2015]

and as such, the power under Article 226 of Constitution of India

may not be exercised by this Court to set-aside the findings which

have been record by an Expert Body.

15. Learned counsel for the respondent places reliance on a

judgment passed by Division Bench of Principal Seat at Jodhpur in

D.B. Special Appeal (Writ) No.1487/2018 (The Union of

India & Ors. Vs. Ashish Kumar), decided on 12.04.2019,

whereby the Division Bench has set-aside the directions given by

the learned Single Judge of examining the candidate therein for a

third time in spite of the Medical Board and Appellate Medical

Board, having given their findings.

15. Learned counsel on the strength of the said judgment,

submitted that the successive medical examination in spite of

concurring opinion of the Medical Board and the Appellate Medical

Board, will not be permissible.

16. I have heard the submissions made by learned counsel for

the parties and perused the material available on record.

17. This Court finds that the petitioner was initially examined by

the Doctors, considering the parameters which are required as per

guidelines issued by the Ministry of Home Affairs.

18. This Court finds from the perusal of the memorandum which

was supplied to the petitioner, declaring him unfit on an account of

three reasons, which have already been mentioned by this Court

in earlier paras.

19. This Court finds that grievance of the petitioner, which was

raised in the appeal, was considered by the Medical Board and the

Medical Board found that as far as two earlier reasons of

deficiency of the petitioner relating to Right DNS, Curving Angle

Left Arm, were not the actual reasons on which he could have

(6 of 8) [CW-152/2015]

been declared unfit and it was only on account of an operation of

hernia which the petitioner had undergone for about 6 months

prior to the date of examination and as such, the Medical Board

opined that the petitioner cannot be treated fit.

20. The submission of learned counsel for the petitioner that the

Authorities were pre-determined to form opinion about the

petitioner and as such, they have acted arbitrarily, this Court finds

that the initial report as well as the subsequent report clearly

makes out that the Authorities had undertaken the medical

examination of the petitioner as per the parameters which were

laid down in guidelines.

21. The contention of learned counsel for the petitioner would

have been probably accepted by this Court, if the Review Medical

Examination of the petitioner would have repeated the same

reasons on which the petitioner had been declared unfit.

22. The report of the Medical Board has taken into account the

fact relating to operation of the petitioner of Hernia, which was

performed about 6 months prior to his examination.

23. The submission of learned counsel for the petitioner that the

guidelines which have been issued by the Ministry of Home Affairs

have been complied with in a mechanical manner and the

Authorities ought to have considered the operation being

performed on petitioner was no more impediment in discharging

the duty then even operation performed prior to 6 months should

not make a candidate ineligible, suffice it to say by this Court that

the employer if has to recruit persons in Para Military Forces and

the post in question is required to be manned by candidates who

are not only physically fit but they are also required to be

(7 of 8) [CW-152/2015]

medically fit in a sound state of health and accordingly, the

parameters are required to be fulfilled by such candidates.

24. The employer if has prescribed minimum one year time to be

elapsed after operation of hernia is performed, the same has

nexus with object which they intend to achieve.

25. The Appointing Authority if finds that operation of hernia

within 6 months from the date of examination will not allow the

candidate to do his job in proper manner, no arbitrariness can be

attached to such decision by this Court.

26. The reliance placed by learned counsel for the petitioner on

the judgment passed by the Calcutta High Court, this Court finds

that the Calcutta High Court in considering the facts of that case

of not giving an opportunity to the candidates before the Appellate

Forum, directed for the re-medical examination and right of such

candidate was recognized for secondary examination by the

Authorities.

27. This Court in the present facts of the case, finds that the

petitioner has already been afforded an opportunity to be

examined by Members of the Board and as such, no direction can

be given as was given by the Calcutta High Court.

28. This Court finds substance in the submission of learned

counsel for the respondent that the Division Bench in the case of

Union of India Vs. Ashish Kumar (supra) has not permitted

successive examinations of a candidate.

29. This Court after going through the judgment passed by the

Division Bench finds that the Single Bench had extended one

opportunity of Medical Examination by a Medical Board and the

Division Bench found that such opportunity was not required as

(8 of 8) [CW-152/2015]

the candidate was already declared unfit by the Appellate Medical

Board.

30. This Court finds that the Authorities while considering the

case of the petitioner has not acted in arbitrary & discriminatory

manner, accordingly, the writ petition lacks merit and the same is

dismissed.

(ASHOK KUMAR GAUR),J

Ramesh Vaishnav /86

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