Karnataka High Court
M Akshay Kumar vs Union Of India on 4 November, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.13993/2022 (S-RES)
BETWEEN:
M AKSHAY KUMAR
S/O B MURTHY
AGED ABOUT 26 YEARS
R/AT NO.565, SHREE ENTERPRISE
GOVERNMENT PRIMARY SCHOOL
YERAGANAHALLI POST
RAJKUMAR ROAD, TERISAN COLLEGE
MYSORE -570011.
...PETITIONER
(BY SRI MANMOHAN P N, ADV.)
AND:
1. UNION OF INDIA
MINISTRY OF DEFENCE
ROOM NO.234, SOUTH BLOCK
NEW DELHI-110001
BY ITS SECRETARY.
2. THE INDIAN COAST GUARD
DIRECTORATE OF RECRUITMENT
COAST GUARD SELECTION BOARD
C BLOCK, SECTOR 62, INDUSTRIAL AREA
NOIDA, UTTAR PRADESH -201309
REPT. BY ITS DIRECTOR GENERAL.
3. SPECIAL MEDICAL BOARD
ARMY BASE HOSPITAL
2
BASE HOSPITAL ROAD
DELHI CANTONMENT
NEW DELHI-110010
REPT. BY ITS BOARD PRESIDENT.
4. APPEAL MEDICAL BOARD
COMMAND HOSPITAL AIR FORCE
CAMBRIDGE ROAD
CAMBRIDGE LAYOUT, JOGUPALYA
BENGALURU -560007
REPT. BY ITS BOARD PRESIDENT.
5. REVIEW MEDICAL BOARD
DIRECTORATE GENERAL
ARMED FORCES MEDICAL SERVICE
MINISTRY OF DEFENCE, 'M' BLOCK
NEW DELHI-110001
REPT. BY ITS BOARD PRESIDENT.
...RESPONDENTS
(BY SRI S RAJASHEKAR, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
R-2 AND R-5 TO CONSIDER REPRESENTATION DATED
09.07.2022 VIDE ANNX-R AND CONSEQUENTLY DIRECT THE R-2
AND R-5 TO GRANT 80 DAYS TIME FOR THE PETITIONER TO
UNDERGO MEDICAL TREATMENT FOR PILONIDAL SINUS AND
CURING AND TO GRANT ALL CONSEQUENTIAL BENEFITS.
THIS PETITION COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner, an Engineering Graduate who participated in the selection process of Assistant 3 Commandant General Duty Branch of second respondent- Indian Coast Guard is before this Court praying for the following reliefs:
(i) issue a writ of mandamus directing the 2nd and 5th respondents to consider representation dated 09.07.2022 (produced as Annexure-R) and consequently direct the respondents No.2 and 5 to grant 80 days time for the petitioner to undergo medical treatment for pilonidal sinus and curing and to grant all consequential benefits; and (i-a) issue a writ of certiorari quashing the order dated 19.07.2022 passed by the 2nd respondent (produced as Annexure-S).
2. Heard learned counsel Sri.P.N.Manmohan for the petitioner and learned counsel Sri.S.Rajasekhar for respondent Nos.1 to 5. Perused the entire writ petition papers.
4
3. Learned counsel for the petitioner would submit that the second respondent under Annexure-B notification dated 06.12.2021 invited applications to recruit among other posts the Assistant Commandant, General Duty. The petitioner was eligible in all respects and as such, he submitted application to the post of Assistant Commandant, General Duty. The selection process consisted of preliminary selection, final selection and to qualify in medical standards. The petitioner qualified in preliminary as well as final selection examination process. The petitioner was called for medical standard examination before the Special Medical Board ("SMB" for short). The petitioner appeared before the SMB on 11.05.2022. The petitioner was diagnosed with 'pilonidal sinus' and was declared unfit. The decision of the SMB was communicated to the petitioner on 31.05.2022. Immediately on the same day, the petitioner filed an appeal before the Appellate Medical Board (for short "AMB"). On the next day, i.e., on 01.06.2022, the petitioner said to have 5 received whatsapp message asking the selected candidates to report by 24.06.2022. In the meanwhile, the petitioner underwent the process of laser surgery to get cured from pilonidal sinus. Thereafter appeared before the AMB on 20.06.2022. On 16.06.2022, respondent No.2 published the select list which is placed on record as Annexure-M. Petitioner's name is found at Sl.No.9 in Medical Documents Awaited/Results Pending list. It is submitted that the selection list which was published on 16.06.2022 required the candidates whose medical documents are awaited/medical results pending has to complete all the formalities and ensure that the medical documents are reached the Director of recruitment by 24th June 2022.
4. The AMB, by communication dated 30.06.2022 intimated the petitioner that he has been found unfit. In the meanwhile, the petitioner submitted a letter dated 26.06.2022 requesting extension of time till 29.06.2022. The petitioner also requested for referring his case for Review Medical Board 6 (for short "RMB"). Petitioner's request to referring him to RMB is rejected under e-mail communication dated 09.07.2022. Therefore, the petitioner is before this Court.
5. Learned counsel for the petitioner Sri.P.N.Manmohan would contend that action of the respondents in rejecting the request of the petitioner for referring his case for RMB is unreasonable, arbitrary and the respondent-authorities have failed to exercise their discretion in proper perspective. Learned counsel for the petitioner referring to clause 20 of General Considerations and Principles of Medical Examinations would submit that the petitioner had 42 days time from the date of decision of SMB. In view of the message received on 01.06.2022, he appeared before the AMB and the AMB examined the petitioner on 20.06.2022. Clause 22 provides for RMB where a candidate is declared unfit by AMB and the result is communicated to the candidate, the candidate can apply for review against the decision of the AMB, within one day of the communication and RMB would 7 be granted at the discretion of the Director General, based on the merits of the case. It is also submitted that RMB is not a matter of right, but, when the provision or principles of medical examination provides for RMB, discretion is to be exercised judiciously taking into consideration the relevant material facts. Learned counsel would submit that pilonidal sinus, due to which, the petitioner is declared as unfit is a curable disease and the petitioner had undergone medical process to get cured. If the respondents had granted RMB, the petitioner who had undergone process would have succeeded before the RMB. Further, learned counsel would also invite attention of this Court to Annexure-S/ communication dated 01.08.2022 wherein his request for RMB is rejected and submits that no reasons are assigned for rejecting his request for RMB. Learned counsel places reliance on the decision of Hon'ble Apex Court reported in (2004)2 SCC 590 in the case of UNION OF INDIA v/s KULDIP SINGH and also a decision reported in (2004)2 SCC 370 in the case of NATIONAL INSURANCE COMPANY LIMITED v/s 8 KESHAV BAHADUR AND OTHERS to say that the action should not be arbitrary and decision taken on discretion should be justified by reasons. Thus, he prays for allowing the writ petition.
6. Per contra, learned counsel Sri.Rajasekhar for respondents would submit that the petitioner was subjected to medical examination from 11.05.2022 to 31.05.2022 and on 26.05.2022, the petitioner was diagnosed with pilonidal sinus and the same was communicated to the petitioner on 31.05.2022. As provided under the General Considerations, the petitioner filed an appeal before the AMB within a day. The AMB examined the petitioner on 20.06.2022 and confirmed the finding of SMB that the petitioner is found unfit on diagnosing pilonidal sinus. Learned counsel would submit that pilonidal sinus require 12 weeks for healing as per the standard guidelines of the respondent-authorities. Therefore, he submits that even otherwise, the petitioner could not have been referred to RMB. Moreover, he submits 9 that as a matter of right, the petitioner or any person who participated in the recruitment process can seek for RMB and RMB could be referred to by the Director General at his discretion. The discretion is to be exercised based on unfitness suffered by the candidate. In the instant case, discretion is exercised taking note of the fact that particular disease suffered by the petitioner takes 12 weeks for its healing after treatment. Therefore, discretion exercised by the respondent-authorities is proper and correct. Learned counsel would also submit that in the event if the petitioner succeeds also, relief sought for by him cannot be granted since training to the selected candidates batch has already commenced and at this stage, the petitioner cannot be allowed to join for training. Learned counsel placed reliance on the decision of the Division Bench of Delhi High Court in W.P.(C) No.5847/2021 (ASHISH KUMAR PANDEY v/s UNION OF INDIA AND OTHERS). Learned counsel would also submit that the present recruitment is to the Armed Force and Court should be conscious in interfering with the process 10 of recruitment, since the process of recruitment is required to the emergent security challenges and would include sovereignty of the Country. Thus, he prays for dismissal of the writ petition.
7. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to whether the second respondent was justified in refusing RMB to the petitioner?
8. Answer to the above point would be in the negative for the following reasons:
The facts are not in dispute. The petitioner applied for the post of Assistant Commandant, General Duty and participated in the selection process. The petitioner was qualified in the preliminary and final selection process. Thereafter, the petitioner was called for medical standard examination. Medical standard examination by SMB was conducted between 11.05.2022 to 31.05.2022. During the 11 course of medical test of the petitioner, petitioner was diagnosed with pilonidal sinus on 26.05.2022 and the same was communicated to the petitioner on 31.05.2022. Clause (20) of General Considerations and Principles of Medical Examination of the second respondent provides for filing an appeal to AMB within a day and the said candidate shall report to the AMB within a period of 42 days. The petitioner said to have undergone medical process to get cured the pilonidal sinus and thereafter appeared before the AMB on 20.06.2022. In the meanwhile, the respondent-authorities had forwarded the whatsapp message on 01.06.2022 to the candidates asking them to report by 24.06.2022. Respondent No.2 had also published the select list on 16.06.2022, wherein the petitioner is found at Sl.No.9 of Medical Documents Awaited/Results Pending list. The said select list made it clear that the candidates whose medical documents are awaited/medical results pending have to complete all the formalities and ensure that medical documents are reached to the Director of the recruitment by 24.06.2022. That made 12 the petitioner to appear before the AMB on 20.06.2022. The AMB conducted examination of the petitioner between 20.06.2022 to 28.06.2022. It also found the petitioner unfit when diagnosed with pilonidal sinus. Since the petitioner had appeared on his own before the AMB on 20.06.2022, the petitioner cannot contend that he is not provided 42 days time, as per clause-20 to appear before the AMB. It could be said that petitioner appeared before AMB on 20.06.2022 much before 42 days provided, because selection list published on 16.06.2022 stated that medical documents awaited candidates have to complete formalities by 24.06.2022. But the respondents' action in asking the candidates whose medical documents awaited to complete formalities by 24.06.2022, even before completion of 42 days as provided under clause-20 is wholly arbitrary, unreasonable and unfair.13
9. Clause-22 of the General Conditions and Principles of Medical Examinations provides for RMB, which reads as follows:
"22. When a candidate is declared unfit by AMB, the result is communicated to him/her by the President of AMB. The candidate can appeal against the findings of AMB within 1 day of the same being communicated. RMB will be granted at the discretion of DGAFMS, based on the merits of the case. RMB is not a matter of right. RMB is held at AH (R&R). Delhi Cantt and at AFMC, Pune. After approval by DGAFMS, the Medical Board proceedings are forwarded to the concerned authorities via the respective DGsMS."
It is true that as a matter of right, RMB cannot be claimed. RMB is to be granted by the Director General at his discretion based on the merits of the case. The discretion is to be exercised on certain principles including that of reasonableness. The decision of the Hon'ble Apex Court in NATIONAL INSURANCE COMPANY LIMITED (supra) has laid down that discretion cannot be arbitrary, but must be a 14 result of judicial thinking. Paragraph 10 of the said judgment reads as follows:
"10. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently, therefore, a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore where the legislature concedes discretion it also imposes a heavy responsibility.
"The discretion of a judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is oftentimes caprice; in the worst it is every vice, folly, and passion to which human nature is liable." Said Lord Camden, L.C.J., in Hindson and Kersey."
10. The discretion shall be exercised reasonably and for the public interest. No doubt, clause-22 confers discretion on the Director General while examining a case for referring to RMB on merits of the case. The petitioner is found with pilonidal sinus. Admittedly, it is a curable disease which is admitted 15 by the respondents and guidelines of the second respondent also makes it clear that it is a curable disease.
11. Admittedly, the petitioner had also undergone medical procedure for curing the said disease. Initially laser procedure and thereafter a regular open flap surgery during the pendency of the writ petition as claimed by the petitioner. It is to be noticed that this Court, by an interim order dated 14.07.2022 directed respondents not to issue appointment letter as regards one of the posts to which the petitioner had applied in the relevant category. When the disease on which, the petitioner was found unfit is curable disease and which could be cured within 12 weeks as per the guidelines of the respondent-authorities, taking note of the same, discretion ought to have been exercised in favour of the petitioner.
12. The decision relied on by the respondents would have no application to the facts of the present case since in all those cases, relief was sought on the basis of medical certificates produced by the candidates therein. The decision 16 relied on by the petitioner in ASHISH KUMAR PANDEY, the petitioner therein had sought appointment on the basis of medical certificate issued by the Government Hospital and that too after filing the writ petition more than 7 months after the selection process. In that circumstance, the Court had to come to the conclusion that when once the Course has begun, even if there were to be any merit in the petition, the petitioner cannot be granted any relief. In the case on hand, the petitioner was denied RMB by communication dated 01.08.2022 without assigning reasons. The communication ought to have indicated at least one reason as to why the second respondent in its discretion refused to allow RMB to the petitioner. Even though discretion is exercised, to justify the discretion, there must be some reasons. The decision of the division bench of Delhi High Court in W.P.(C) No.3930/2020 to contend that the Medical Practitioners of the Air Force and Defense Services, are the best suited to form an opinion as to the medical fitness of the candidates to be recruited. There is no dispute with regard to the said 17 principle. In the instant case also, this Court is directing the second respondent to refer the petitioner to its own RMB. This Court would not venture to direct respondents to rely on medical certificate that would be produced by the petitioner. Therefore, in the facts and circumstances of the present case, I am of the view that the second respondent was not justified in refusing RMB to the petitioner. Hence, the following order:
The second respondent is directed to refer the case of the petitioner to RMB/5th respondent herein forthwith. If the 5th respondent RMB finds the petitioner fit, then consequential orders shall follow.
With the above, the writ petition stands disposed of.
Sd/-
JUDGE mpk/-* CT:bms