Delhi High Court - Orders
Vijender Singh vs Commissioner Of Police And Anr on 29 November, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Anoop Kumar Mendiratta
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3830/2019, CM APPL. 17425/2019
VIJENDER SINGH
..... Petitioner
Through: Mr. Ram Niwas Buri and Mr. Rishabh
Sharma, Advocates.
versus
COMMISSIONER OF POLICE AND ANR.
..... Respondents
Through: Mr. Zoheb Hossain, Addl. Standing
Counsel, GNCTD and Mr. Vivek
Gurnani, Advocates.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
% 29.11.2022
1. This petition has been filed by the petitioner challenging the order dated March 19, 2019 of the Central Administrative Tribunal ('Tribunal', for short), whereby the Original Application filed by the petitioner against the order dated February 12, 2019 with a further prayer that the respondents to constitute a review medical examination from any Central Government Hospital at New Delhi, was rejected.
2. The case of the petitioner before the Tribunal was that he had applied for the post of Constable (Executive) Male in Delhi Police in the year 2016. He was selected provisionally for the said post and was called for medical fitness; for the verification of character and antecedents and checking of documents. Vide letter dated February 23, 2018, he was directed to report to Signature Not Verified Digitally Signed W.P.(C) 3830/2019 Page 1 of 6 By:DINESH CHANDRA Signing Date:02.12.2022 13:05:35 Medical Superintendent, Deen Dayal Upadhyay Hospital, on May 2, 2018 for medical examination. The petitioner appeared before the authority, who declared him unfit on account of a medical deformity, where the forearms is angled away from the body to a greater degree than normal, when fully extended, known as „Cubitus Valgus‟ deformity and the decision was informed to the petitioner vide letter dated June 26, 2018.
3. The petitioner preferred an appeal for re-medical examination along with two certificates issued by two Medical specialists. The said request was acceded to and the petitioner was directed to report to the Medical Superintendent, Lok Nayak Hospital, New Delhi for second medical examination which was held on November 22, 2018. The Special Medical Board also declared the petitioner unfit on account of the aforesaid deformity. A show cause notice dated February 12, 2019 was issued to the petitioner as to why his candidature for the post of Constable (Executive) Male may be not cancelled for the above reasons. The petitioner instead of filing a reply, had filed the Original Application before the Tribunal.
4. The Tribunal was of the view that the Medical examination report and the Certificates as issued by the Medical board constituted by the Government alone can be considered. The Tribunal has not considered the two certificates relied upon by the petitioner on the ground that the same were given at the behest of the petitioner. A reference is made to the judgment of the Supreme Court in the case of Secretary, Ministry of Defence & Ors. vs. Damodaran A.V. (Dead) through LRs,(2009) 13 SCR 416, wherein it is held that the medical board is an expert body and its opinion is entitled to be given due weightage while examining the medical issues.
5. Today, learned counsel for the petitioner would submit the only prayer Signature Not Verified Digitally Signed W.P.(C) 3830/2019 Page 2 of 6 By:DINESH CHANDRA Signing Date:02.12.2022 13:05:35 of the petitioner is for constitution of a medical board under the aegis of a hospital of the Central Government for re-examination of the petitioner. If the said medical board opines in favour of the petitioner, the respondent can give appointment to the petitioner, otherwise not.
He has relied upon the judgment of the Supreme Court in the case of National Thermal Power Corporation Pahalgaon&Ors. vs. Mukul Dass&Ors., (2014) 9 SCC 385, to contend that the Supreme Court has in that case, allowed the constitution of a further board for examining the respondents therein. He seeks the prayer made in the petition.
6. On the other hand, Mr. Zoheb Hossain, Addl. Standing Counsel for the respondents would justify the order passed by the Tribunal, inasmuch as, the petitioner was initially examined by a medical board consisting of one doctor who had found him unfit due to „Cubitus Valgus‟. It is on the asking of the petitioner, that a larger board was constituted consisting of three doctors at the level of the Associate Professors working in the Department of Orthopaedics in Lok Nayak Hospital and Maulana Azad Medical College, who have also found the same deformity i.e. „Cubitus Valgus‟ and in view of the identical reports submitted by two different boards, the petitioner was rightly issued the show cause notice as to why the offer of appointment issued to the petitioner be not cancelled.
7. The submission of Mr. Zoheb Hossain is that the petitioner is seeking an appointment as a Constable in Delhi Police and given the nature of duties the petitioner is required to be fit in all respects. Since the deformity, as opined by the medical board shall affect the discharge of duties by the petitioner as a Constable in Delhi Police, the action of the Delhi Police in cancelling the offer of appointment to the petitioner is justified. He has also Signature Not Verified Digitally Signed W.P.(C) 3830/2019 Page 3 of 6 By:DINESH CHANDRA Signing Date:02.12.2022 13:05:35 relied upon the judgment of this Court in case of K.M. Priyanka vs. Union of India & Ors., 2020 SCC OnLine Del 1851, wherein the Court was concerned with the appointment of a Constable GD in Central Armed Police Forces and the petitioner therein was also suffering from an identical deformity of„Cubitus Valgus‟ with an angle of less than 20 degrees i.e. 18 degrees, but still the Division Bench of this Court has not interfered with the decision of the respondents therein to declare the petitioner unfit for appointment in the Central Reserve Police Force. He states that in view of the decision of this Court with regard to an identical deformity, the petitioner's appointment being also in a police force, i.e., Delhi Police, the impugned action of the Delhi Police cannot be faulted.
8. This Court is in agreement with the submissions made by Mr. Hossain, when two medical boards have found that the petitioner unfit, then the Court cannot sit in an appeal over the decision of such expert bodies. The appointment being in Delhi Police, surely, the requirement of medical fitness would be of higher degree, as the nature of duties amongst many, including maintenance of law and order; including use of fire arms. The issue with regard to fitness of a person with identical deformity has been settled by a Coordinate Bench of this Court in K. M. Priyanka (supra), wherein in paragraph 8, this Court has held as under:-
"We have on several occasions observed that the standard of physical fitness for the Armed Forces and the Police Forces is more stringent than for civilian employment. We have, in Priti Yadav v. Union of India, 2020 SCC OnLine Del 951; Jonu Tiwari v. Union of India, 2020 SCC OnLine Del 855; Nishant Kumar v. Union of India, 2020 SCC OnLine Del 808 and Sharvan Kumar Rai v. Union of India, 2020 SCC OnLine Del 924, held that once no mala fides are attributed and the doctors of the Forces who are well aware of the demands of duties of the Forces in Signature Not Verified Digitally Signed W.P.(C) 3830/2019 Page 4 of 6 By:DINESH CHANDRA Signing Date:02.12.2022 13:05:35 the terrain in which the recruited personnel are required to work, have formed an opinion that a candidate is not medically fit for recruitment, opinion of private or other government doctors to the contrary cannot be accepted inasmuch as the recruited personnel are required to work for the Forces and not for the private doctors or the government hospitals and which medical professionals are unaware of the demands of the duties in the Forces. In fact, the case of Priti Yadav (supra) also related to „cubital valgus‟. It is also to be noted that the specialists that the petitioner had consulted had also found that the petitioner suffered from „cubital valgus‟ and therefore, the findings by the Medical Boards were not wrong."
9. In so far as the plea of the Counsel for the petitioner, that he is not seeking appointment in Delhi Police, but a direction, for re-examination of the petitioner in a hospital under the Central Government, is also not appealing, when admittedly two boards have given concurrent findings that the petitioner, in view of „Cubitus Valgus‟, is unfit for appointment as a Constable in Delhi Police. There is no justification for this court to discard such opinions, more so, the petitioner has not challenged the constitution / competency of the two boards, which have declared him unfit. That apart no allegation of mala fide have been made by the petitioner against the members of the boards.
10. The Tribunal is also justified in relying upon the Judgment of the Supreme Court in the case of Secretary Ministry of Defence (supra), wherein the Supreme Court has held that the medical board being an expert body, its opinion is entitled to be given weightage.
11. The reliance placed by the counsel for the petitioner on the Judgment of the Supreme Court in the case of National Thermal Power Corporation Pahalgaon (supra) is concerned, the said Judgment has no applicability in the facts of this case and as such clearly distinguishable.
Signature Not Verified Digitally Signed W.P.(C) 3830/2019 Page 5 of 6 By:DINESH CHANDRA Signing Date:02.12.2022 13:05:3512. In view of our discussion, we do not see any merit in the petition, the petition is dismissed and the application is dismissed as infructuous.
13. No cost.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J.
NOVEMBER 29, 2022/akc Signature Not Verified Digitally Signed W.P.(C) 3830/2019 Page 6 of 6 By:DINESH CHANDRA Signing Date:02.12.2022 13:05:35