Jharkhand High Court
Dinesh Kumar Mehta vs Union Of India on 2 February, 2021
Equivalent citations: AIRONLINE 2021 JHA 1010
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 837 of 2019
Dinesh Kumar Mehta, aged about 29 years, son of Sri Suresh Mehta,
Resident of village- Daruadih, P.O-Sangbar, P.S-Lisliganj, District-Palamau-
822118 (Jharkhand) ...... Appellant
Versus
1.Union of India
2.Staff Selection Commission, through its Regional Director (ER), 1 st Mso
Building (8th Floor), 234/4, Acharya Jagdish Chandra Bose Road, P.O/P.S-
Nizam Palace, District-Kolkata-700020 (West Bengal)
3.Central Reserve Police Force, through its Commandant, Group Centre,
Central Reserve Police Force, Durgapur, P.O. & P.S. Durgapur, District-
Durgapur-713214 (West Bengal)
4.Office of the DIGP, Group Centre, Central Reserve Police Force,
Durgapur, P.O. & P.S. Durgapur, District-Durgapur-713214 (West Bengal)
5.Medical Officer, Group Centre, Central Reserve Police Force, Durgapur,
P.O. & P.S. Durgapur, District-Durgapur-713214 (West Bengal)
...... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Ms. Rakhi Rani, Advocate
For the Respondents : Mr. Jitendra Tripathi, C.G.C.
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Oral Judgment:
Order No.4/Dated: 2nd February, 2021
1. With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.
2. The instant appeal under Clause 10 of the letters patent, is directed against the order/judgment dated 17.09.2019 passed by the learned Single Judge of this Court in W.P.(S) No.7858 of 2013, whereby and whereunder the writ Court has declined to issue writ of mandamus, directing the respondents to remit all the records pertaining to appeal filed by the writ petitioner against medical unfitness for combined recruitment of Constable 2 (GD) in Central Armed Police Forces (C.A.P.Fs). Further, declined to issue writ of mandamus directing the respondents to allow the writ petitioner to join his duty on the post of Constable (GD) in Central Armed Police Forces (C.A.P.Fs) and further declined to issue writ of mandamus directing the respondent no.2 to remit the entire records of the writ petitioner relating to his medical examination held during recruitment process.
3. The brief fact of the case, which requires to be enumerated, reads hereunder as:
The Staff Selection Commission initiated a process of recruitment to the post of Constable (GD) in various Central Reserve Police Forces, in pursuant to the advertisement published, as contained in Annexure-1. The writ petitioner appeared in the physical test, vide Annexure-3, which was held on 15.02.2012 in which he was declared qualified. The writ petitioner entered into the second stage of recruitment process by appearing in the written examination which was held on 22.04.2012 in which also the writ petitioner qualified and accordingly, a list of successful candidates was published for medical examination for recruitment to the post of Constable (GD) in C.A.P.Fs and Riffle Men (GD) in Assam Riffles.
The writ petitioner had appeared in the medical examination which was held at Ranchi in the month of September, 2012, in which the writ petitioner was declared medically fit. The appointment letter was issued in favour of the writ petitioner on 20.08.2013 to the post of Constable (GD). The said appointment letter since contains a clause, as under Clause-n, stipulating therein that since earlier medical examination of the writ 3 petitioner has already expired i.e. more than one year, the writ petitioner is required to undergo a fresh medical examination and accordingly, the acceptance of appointment letter was issued subject to medical fitness as per the condition stipulated in Clause-n. The writ petitioner appeared in the medical examination which was held in the month of September 2012. The writ petitioner joined his duty on 19.09.2013 and in terms of the condition stipulated under Clause-n, he was again medically examined by the Medical Board in which he was declared medically unfit for 'Cubitus Valgus'.
The writ petitioner being aggrieved with the aforesaid unfitness on medical ground and non-acceptance of the joining, has approached this Court by filing writ petition under Article 226 of the Constitution of India. The writ petitioner also filed one interlocutory application being I.A. No.2359 of 2014 seeking prayer for amendment about the cancellation of the appointment of the writ petitioner which was allowed on 19.06.2014.
The respondents appeared before the writ Court and filed counter affidavit, stating inter alia therein that in pursuant to the condition stipulated under Clause-n of the offer of appointment which was required due to expiry of one year of earlier medical examination of the writ petitioner, he was found unfit due to 'Cubitus Valgus' and again by Review Board consisting of three doctors, the said unfitness was found perfect. Accordingly, on medical unfitness his appointment was cancelled, therefore, the said decision suffers from no infirmity.
The learned Single Judge after considering the rival submissions advanced on behalf of the parties has dismissed the writ petition, found no 4 reason to interfere with the decision of the authority in cancelling the appointment of the writ petitioner.
4. Ms. Rakhi Rani, learned counsel appearing for the appellant-writ petitioner has submitted that it was not required to direct the writ petitioner to go for re-medical examination on the pretext that one year has already expired from the earlier medical examination. According to her, even accepting one year time as already elapsed after earlier medical examination, it is due to the fault on the part of the respondent authority of the recruiting agency, for which the candidate cannot be allowed to be penalized. Her further submission is that once the offer of appointment has been accepted, there is no reason not to accept it rather cancellation is highly improper. Her further submission is that after the writ petitioner having been declared to be unfit, on examination by the doctor at Sadar Hospital, Daltonganj, he has been found medically fit and in that view of the matter, the case of the writ petitioner is to be considered by reconstituting another Medical Board. But this aspect of the matter has not been appreciated by the learned Single Judge by dismissing the writ petition.
5. Per contra, Mr. Jitendra Tripathi, learned Central Government Counsel has submitted that the decision for re-medical examination had been taken by the respondents, in pursuant to the conditions stipulated in the offer of appointment as under Clause-n thereof, which reflects that in case of expiry of the period of one year from the earlier medical examination, the candidate is required to go for re-medical examination before acceptance of joining. The offer of appointment was issued to the writ petitioner with specific 5 condition stipulated therein as under Clause-n thereof, and the writ petitioner, after accepting the offer of appointment in entirety, had gone for re-medical examination in which he was found medically unfit as subsequently in review he was found unfit. According to him, since the appointment is to be made in the disciplinary force, so there is requirement of fitness on medical ground in all respects.
6. Learned counsel for the writ petitioner has submitted that the condition as stipulated under Clause-n of the offer of appointment is not based upon any rule.
This Court, in pursuant to the aforesaid submission made on behalf of the learned counsel for the writ petitioner, had passed an order on 15.12.2020 directing the respondents to bring on record the rule that after lapse of one year again medical examination was required to be conducted of the candidate and secondly, why, even after medical examination during the recruitment process Clause-10 has been inducted in the appointment letter.
In pursuant to the aforesaid direction, an affidavit has been filed by the respondents stating inter alia therein about the rules or procedure requiring for re-medical examination by referring to the instruction issued on 09.04.2013 as contained in Annexure-B, wherein it has been provided as under Clause-2(b) that fresh medical examination will be conducted in respect of RME fit candidates who will find a place in merit on their joining. Deformity of a permanent nature if any deducted during fresh medical examination, should be examined by a Board of Medical Officers before declaring such candidates unfit for service to avoid litigation at later stage. 6
According to the learned counsel for the respondents, there is already an instruction of the competent authority in this regard. He submits that since the appointment is being made in the disciplinary force, medical fitness is of paramount importance and therefore, the specific condition as has been referred in the offer of appointment, the writ petitioner has accepted the same and participated in the re-medical examination in which he has been declared unfit. Now, it is not available for the writ petitioner to question Clause-n of the offer of appointment and the unfitness on medical ground.
He further submits by referring to the counter affidavit filed before the writ Court, stating therein that the first medical examination of the writ petitioner was held on 21.07.2012, the validity of which expired on 20.07.2013 therefore, since the appointment letter was issued on 20.08.2013, an stipulation had been made therein under Clause-n that he has to undergo medical examination, hence there is no illegality in the impugned decision.
7. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.
This Court before proceeding to assess the legality and propriety of the order/judgment of the learned Single Judge, deem it fit and proper to refer some admitted facts.
Admittedly, the writ petitioner was initially medically examined on 21.07.2012. The offer of appointment for the post of Constable (GD) was issued on 20.08.2013. The aforesaid appointment letter contains a condition as Condition no.2(n) to the Annexure-6 to the writ petition, which reads hereunder as:
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"Since your earlier medical examination already expired (i.e. more than 01 year) you have to undergo a fresh medical examination on reporting in this Office. Your appointment will only be considered for the post of CT/GD subject to medical fitness."
With further stipulation made under Condition No.3 to the effect that if the offer of appointment letter is accepted in the terms and conditions as mentioned above, report to the DIGP, GC, CRPF, Durgapur-14, West Bengal on or before 19.09.2013 positively along with original copy of all testimonials in support of your date of birth, education qualification, category, pre-verification certificate and No objection certificate from the department, in case in service in any Government Department/PSU etc. The contents of the offer of appointment vide Annexure-6 to the writ petition, reads hereunder as:
"OFFICE OF THE DIGP, GROUP CENTRE, C.R.P.F.,
DURGAPUR-713214 (W.B)
No.R.II-5/2013-EC, V-GCD (165 RTS) Dated, the 20 August 2013
To
Roll No. : 4205507039
Name : DINESH KUMAR MEHTA
F/Name : SURESH MEHTA
Village : DARUADIH
Post : SANGBAR
P.S : LISLIGANJ
District : PALAMU
State : JHARKHAND
Pin Code : 822118
Subject: OFFER OF APPOINTMENT FOR THE POST OF CT/GD I have been directed to offer you post of Constable (General Duty) in Central Reserve Police Force as a result of selection through Staff Selection Commission. The scale of pay of the post of Constable (General Duty) is Rs.5200-20200 plus Grade Pay Rs.2000/- (Pay Band-1). In addition, you will be entitled to dearness allowance and other allowances as applicable to Central Government Employees from time to time and all other benefits as admissible to CRPF personnel.
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2. The other terms and conditions of the appointment will be as under:-
a) The appointment carries with it the liability to serve in any part of India and beyond.
b) The post of Constable (General Duty) is combatised and purely temporary but likely to continue. On appointment to the said post you will be on probation for a period of two years. On successful completion of period of probation you will be considered for confirmation.
c) You will have to undergo basic training at any of the training institutions and your services are liable to be terminated if you do not successfully complete the basic training.
d) Your services can be terminated at any time by giving one month notice (by either side viz. the appointee or the appointing authority) without assigning any reason. The appointing authority however, reserves the right to terminate the services of the appointee forthwith or before the expiry of stipulated period of notice by making payment to him a sum equivalent to the pay and allowances of the period of notice or the un- expired portion thereof.
e) On joining the Force you will be governed by CRPF Act 1949 and CRPF Rules 1955 as amended from time to time and other Central Civil Services Rules etc. as may be prescribed by the Government from time to time.
f) As per provision contained in GOI (MOF) OM No.1 (7) (2)/2013-TA dated 07.01.2004, New Defined Contributory Pension Scheme effective from 01.01.2004 will be applicable for you.
g) In the event of your resignation from the post within 10 years from the date of enrolment, you shall be required to refund to the Government a sum equal to three months pay and allowances received prior to resignation or discharge as the case may be or the cost of training charges imparted to you in the Force, whichever is higher.
h) On appointment your character and antecedents will be verified from the concerned civil authority and adverse remarks if any noticed, your services will be terminated without assigning any reasons.
i) You will not be entitled for any travelling allowance for joining the post on first appointment.
j) You should bring sufficient money with you for your personal/necessary expenditure till receipt of pay and allowances and for availing mess facilities etc. You will have to deposit a sum of Rs.2500/- as mess advance.
k) You should submit certificate of character in the enclosed proforma (Annexure-III) signed by a Gazetted Officer and counter-signed by District Magistrate or SDM or their superior officer while reporting to join duty and original copy of educational/other certificates etc.
l) Candidates seeking reservation as OBC candidates, declaration as under is also required to be submitted as per specimen attached as Appendix-'A'.
m) You have to open an SBI savings bank account (along with ATM card and Cheque book) in your name in the SBI located in your vicinity of your native place and will submit the bank particulars i.e. Account Number, 9 Bank Name, Bank Code, Bank Address with PIN Code etc. at the time of joining the post.
n) Since your earlier medical examination already expired (i.e. more than 01 year) you have to undergo a fresh medical examination on reporting in this Office. Your appointment will only be considered for the post of CT/GD subject to medical fitness.
o) In case you do not report by stipulated date mentioned at para-3 offer of appointment made to you will be deemed to lapse automatically and no correspondence what so ever on subject will be entertained.
3. If you accept the offer of appointment on the terms and conditions as mentioned above, you should report to the DIGP, GC, CRPF, Durgapur- 14, West Bengal on or before 19.09.2013 positively along with original copy of all testimonials in support of your date of birth, education qualification, category, pre-verification certificate and No objection certificate from your department, in case you are already serving in any Government Department/PSU etc. sd/-
(Premjeet Kumar) Dy. Commandant For Comdt. GC, CRPF, Durgapur"
It is evident from the offer of appointment as quoted hereinabove that a condition has been stipulated as under Clause-n to undergo a fresh medical examination based upon the reason that earlier medical examination has already expired i.e. more than one year. It is further evident that if the condition inserted under paragraph-2 thereof is accepted to the candidate, the report was to be made on or before 19.09.2013. It is not in dispute that the writ petitioner after receipt of the offer of appointment has reported before the concerned authority and he has gone for re-medical examination.
8. We have perused the instruction as has been appended as Annexures- B, C and D to the counter affidavit wherein a conscience has been taken by the authority for fresh medical examination to be conducted in respect of RME fit candidates, who will find a place in their joining in order to find out the nature of deformity of permanent nature if detected during fresh medical 10 examination, will be examined by a Board of Medical Officer before declaring such candidate unfit for service.
Learned counsel for the writ petitioner, at this juncture, has raised the issue of making insertion of aforesaid clause in the offer of appointment.
We are not impressed with such argument as because admittedly the writ petitioner was found medically fit in the medical examination held on 21.07.2012 but for one reason or the other he could not have been appointed therefore, recruiting agency had decided to issue offer of appointment. But, in the meanwhile, one year time had been elapsed which necessitated the recruiting agency to call upon the writ petitioner to go for re-medical examination in order to assess his medical fitness and therefore, a condition has been inserted in the offer of appointment.
It is not in dispute that when there is a recruitment, more particularly in the disciplined force, the medical fitness is of paramount importance and after taking into consideration the same, if the authority has come out with a condition as inserted under Clause-n of the offer of appointment, asking the writ petitioner to go for re-medical examination and if the condition stipulated in the offer of appointment is acceptable, to report before the concerned authority. The writ petitioner without any objection reported before the concerned authority and was sent for medical examination, in which he has been found medically unfit due to suffering from 'Cubitus Valgus' which according to the respondents is incurable disease and therefore, his appointment has been cancelled.11
9. The writ petitioner has approached to the writ Court, invoking the jurisdiction conferred under Article 226 of the Constitution of India. It is not in dispute that the jurisdiction of the writ Court under the power of judicial review in a case of recruitment in the matter of appointment pertaining to medical fitness, is rarely to be exercised. It is for the reason that if the recruiting agency is making out a policy for a similarly situated without practicing pick and choose policy, is least to be interfered with. If such a decision would be interfered with by the High Court under the power of judicial review, it will amount to prevailing upon the decision of the recruiting agency.
The fact in this regard is that although the writ petitioner was found medically fit in the initial examination but for one reason or the other he could not be appointed. In the meanwhile, more than one year time had been elapsed and therefore, the recruiting agency issued the offer of appointment with condition of re-medical examination in order to assess the medial fitness of the writ petitioner. If such decision has been taken by the recruiting agency, the same cannot be said to be improper and illegal, more particularly in the facts of the case, wherein the appointment is to be made in the Central Armed Police Forces which is a disciplined force and supposed to discharge the battalion duty wherein medical fitness is of paramount importance.
Further, it is not the case of the writ petitioner that he has been subjected to pick and choose policy rather according to the writ petitioner, uniform policy has been followed for one or other candidate but his 12 appointment has been delayed for more than a year and if that be the position, it cannot be said that the respondent authority have acted against the writ petitioner with malice.
Furthermore, the writ petitioner in conscious with naked eyes, has accepted the offer of appointment wherein it has specifically been stated that in case of all terms and conditions under Clause no.2 thereof, one or the other candidate is to report before the competent authority and in pursuant thereto, he without any objection has appeared before the concerned authority and thereafter in the medical examination he has been found unfit and in that view of the matter, his appointment has been cancelled.
The case of the writ petitioner that he had again examined himself in Sadar Hospital, Daltonganj wherein he was found medically fit and therefore, the authority may be directed to accept his appointment.
But, we are not impressed with such argument as there are full-fledged medical set up established by the recruiting agency. It is of paramount consideration by the recruiting agency in all respect about the physical condition of a candidate, and if any decision has been taken by the expert Medical Board consisting of three doctors even by the Review Medical Board, wherein the writ petitioner has been found medically unfit, this Court cannot direct by issuing writ of mandamus under Article 226 of the Constitution of India, to accept the finding of the doctor of the Sadar Hospital, Daltonganj as because the writ petitioner has accepted the offer of appointment stipulating therein the condition as contained under Clause-n thereof and once it has been accepted, in pursuant thereto, he has been 13 examined in which he has been found medically unfit and further on review medical examination also he has been found medically unfit, there is no reason to disbelieve the said report of the medical experts.
10. It further requires to refer herein that there is scope of judicial review in the matter if there is any infirmity in the judicial making process but if there is no infirmity, least to be interfered with. The writ petitioner has failed to point out any error in the decision making process by the authority rather the authorities in a bona fide manner has examined the writ petitioner before the re-medical examination Board and further in review also.
11. Learned Single Judge after taking into consideration the facts in entirety as stated hereinabove has declined to interfere with the decision of the authority. We find no reason to interfere with the same.
12. Accordingly, the appeal lacks merit and hence, is dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Saket/-
A.F.R.