Madhya Pradesh High Court
Sunil Jhariya vs The State Of Madhya Pradesh on 19 June, 2018
~1~
HIGH COURT OF MADHYA PRADESH
W.P. No. 8327/2016
Indore, Dated: 19/6/2018
Shri M.R. Sheikh learned counsel for petitioner.
Shri Pankaj Wadhwani learned counsel for State.
Heard finally with consent.
By this writ petition the petitioner has prayed for a
direction for issuing order of appointment on his selection to
the post of Constable.
The case of petitioner is that in pursuance to the
advertisement issued in the year 2013 the petitioner had
participated in the selection process for appointment to the
post of constable. Thereafter petitioner had qualified in the
written examination and documents of petitioner were verified
on 1/6/2013 and physical examination was also done. Vide
Annexure P-5 the posting order was also issued. Further case
of petitioner is that vide Annexure P-6 the Medical Board had
done the physical examination of petitioner and had found the
height of petitioner as 168 cm but even thereafter the
respondents have not issued the order of appointment.
Learned counsel for petitioner submits that once the petitioner has qualified the examination he has been selected and posting order has been issued and he also fulfills the requirement of minimum height then there is no justification for denying the appointment to petitioner.
As against this learned counsel for respondents opposing the writ petition has submitted that subsequently the height of petitioner was measured and it was found to be 167.5 cm, hence the petitioner has not been issued the order ~2~ of appointment.
Having heard the learned counsel for parties and on perusal of the record it is noticed that the report of medical board filed as Annex.P-6 is not in dispute. In the said report the height of petitioner was found to be 168 cm. The document which has been filed by respondents alongwith the reply is not the report of medical board, but it is a document signed by the Subedar stating that subsequently the height of petitioner has been noted as 167.5 cm. In view of these two contradictory documents, the report of medical board which has been taken at the appropriate stage will prevail.
This aspect of the matter has been examined by this court in another case in WP No. 17655/17 in the matter of Khubiram Vs. State of MP and others by order dated 26/2/2018 and it has been held that the earlier report of medical board will prevail. In the case of Khubiram (supra) this court has held as under:
Shri A.Choubey, learned counsel for the petitioner. Shri Piyush Shrivastava, learned Govt.Advocate for the respondents/State.
Heard finally with consent.
By this writ petition the petitioner has prayed for a direction to issue the appointment order for the post of Constable(G.D.) on the basis of the result Annexure P-4.
The case of the petitioner is that in pursuance to the advertisement for recruitment to the post of Constable, Annexure P-1, the petitioner had participated in the selection process and after selection, the medical examination of the petitioner was also done by the District Medical Board and the District Medical Board in the report Annexure P-5, found the height of the petitioner as 168 Cms. For the case of the petitioner is that he fulfills the requisite criteria, yet the appointment order has not ~3~ been issued.
Learned counsel for the petitioner submits that once the petitioner was selected and he had fulfilled all the requisite requirement before the District Medical Board, then there was no reason for not issuing the appointment order to the petitioner. He further submits that after appearing before the District Medical Board, the respondents were not justified in asking the petitioner to appear before another Medical Board and in this regard he has placed reliance upon the Division Bench order in the case of State of M.P.and others Vs. Chhagan Singh and another in W.A.No.149/2017 dated 16.08.2017. Learned counsel appearing for the respondent submits that since at the stage of appointment, some discrepancy was found in respect of the medical fitness, therefore, the petitioner was referred to another District Medical Board and the said District Medical Board has found the height of the petitioner as 166.6 cms.
After hearing the learned counsel for the parties and on perusal of the record it is noticed that there are two contradictory reports of District Medical Board. The earlier report of the District Medical Board which has been filed by the petitioner as Annexure P-5 clearly records the height of the petitioner as 168 Cms.
It has not been disputed by the counsel for the State that the said report of the District Medical Board was obtained as per rules. It has also been pointed out in respect of another candidate Chhagan Singh, similar discrepancy was noted in the subsequent report and name of Chhagan Singh was also in the same list of the subsequent District Medical Board wherein the name of the present petitioner figures.
Similar issue had come up before the Division Bench of this Court in the matter of Chhagan Singh (Supra) wherein the Division Bench has held as under :-
"5. The stand of the appellants was that after selection when the height was measured by the Department, it was found to be 167 cms. Since there was difference in the report given by the ~4~ District Medical Board and measured by the Department, then the matter be referred to the District Medical Board by the Divisional Joint Director, Health. The Medical Board examined the respondent No.1 clinically and his height was found to be 167.4 cms. Since there was no relaxation in the height, therefore, respondent No.1 was not permitted to join.
6. As per GOP No.137/2012 dated 30.07.2012 issued by the Home Department, State of M. P., the candidates are required to be enrolled under Clause-2 and the height should be 168 cms. for all categories except Scheduled Tribe. By way of Note, it is mentioned that at the time of selection, the height and chest would not be measured by the Police Department and after selection, health conditions of selected candidates would be examined by the District Medical Board.
7. In the present case, there are two reports of District Medical Board, which is in favour of the respondent No.1 certifying that his height is 168 cms. and other which is given by the Police Department and in which his height is measured as 167 cms. Thereafter, he was again examined by the District Medical Board as per direction of Divisional Joint Director, Health vide letter dated 30.12.2013 and his height was measured as 167.4 cms. The second report is also given by the District Medical Board and not by the Divisional Medical Board. The Government has wrongly mentioned that it is given by the Divisional Medical Board.
8. On 06.05.2016, learned Writ Court directed that the height of the respondent No.1 be measured by a team of doctors in the M.Y Hospital, Indore with a direction to the respondent No.1 to appear before the Dean, MGM Medical College and who shall physically examine height of the respondent No.1 by a panel of three doctors. On 29.07.2016, Dr. Virendra Singh Pal, Joint Director-cum- Superintendent of MY Hospital, Indore appeared before the Court and submitted that there is no ~5~ such instrument available in the M.Y Hospital to measure the height.
9. Learned Writ Court considering the fact that Clause 2.(4).3 Note-1 of GOP 137/2012 as well as Clause 1.12.4(2) & (3) of the Selection Rules, 2013 clearly provides that the Department shall not measure the height of the candidates and after the completion of selection process, health condition of the candidate would be examined by the District Medical Board. The only competent authority is the District Medical Board and in the present case, the first District Medical Board gave report immediately after selection in favour of the respondent No.1 declaring him 'fit' as his height is 168 cms. The case of the respondent No.1 was not required to be sent again to the District Medical Board by the Divisional Joint Director, Health Services vide letter dated 30.12.2013.
10. As per the Court direction, the office of Joint Directorcum-Superintendent, M.Y Hospital, Indore vide its report dated 04.06.2016 informed Writ Court that difference of height measured by two Medical Boards is only 0.6 cm. and they have no instruction to give accurate report in millimetre.
11. Considering the aforesaid, learned Writ Court came to the conclusion that there was no occasion for the Department to measure his height contrary to the Selection Rules and refer to another District Medical Board. As the first report is in favour of the respondent No.1, therefore, allowed the writ petition with a direction to the appellants to issue appointment letter in favour of the respondent No.1.
12. Learned Government Advocate has drawn our attention to the communication dated 30.04.2014 and submits that the learned Writ Court committed legal error in allowing the writ petition preferred by the respondent No.1.
13. On due consideration of the arguments of the learned Government Advocate and clause 2.(4).3 Note-1 of GOP 137/2012 as well as Clause 1.12.4(2) & (3) of the Selection Rules, 2013 ~6~ which clearly provides that the Department shall not measure the height of the candidates and after the completion of selection process, health condition of the candidate would be examined by the District Medical Board, we are of the view that the learned Writ Court has rightly held that the conduct of the appellants is contrary to the Selection Rules and GOP. Since the first report is in favour of the respondent No.1, therefore, he is liable to be given the benefit.
14. Considering the aforesaid so also the fact that in Selection Rules, 2013 and GOP, there is no provision for obtaining second report from the District Medical Board, no case for interference in the impugned order, as prayed by the appellants, is made out. The writ appeal is accordingly, dismissed."
The facts of the present case is also identical. In the present case, report of the District Medical Board has been obtained by the respondent on the plea of existence of some discrepancies. The Division Bench has clearly held that once the competent Board i.e the District Medical Board had given report, immediately after the selection and declaring the concerned candidate to be fit, then the respondent was not required to send the candidate again to another District Medical Board. The case of the petitioner is squarely covered by the aforesaid Division Bench order.
Hence, the writ petition is disposed of on the same terms as contained in the order of Division Bench in the case of Chhagan Singh (Supra) by directing the respondents to proceed further on the basis of the report of the earlier District Medical Board and do the needful in accordance with law within a period of one month from today.
Having regard to the aforesaid and considering the fact that the competent medical board has found the height of petitioner to be as per requirement, I am of the opinion that respondents on the basis of any subsequent report of Subedar etc cannot deny the order of appointment to ~7~ petitioner.
For the detailed reasons which have been assigned in the case of Khubiram (supra), and considering the facts of the present case also, I am of the opinion that the writ petition filed by petitioner deserves to be allowed. Hence the same is allowed by directing the respondents to process the case of petitioner on the basis of the report of medical board Annex.P- 6 and do the needful within a period of one month from today.
C.C. As per rules.
(Prakash Shrivastava) Judge BDJ Bhuneshwar Datt 2018.06.20 18:20:47 -07'00'