Allahabad High Court
Purushottam Narayan vs State Of U.P. And 4 Others on 1 April, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 33 Case :- WRIT - A No. - 2469 of 2022 Petitioner :- Purushottam Narayan Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Anil Babu Counsel for Respondent :- C.S.C. Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Anil Babu, learned counsel for the petitioner and Mr. Pranav Ojha, Additional Chief Standing Counsel assisted by Mr. S.C. Upadhyay, learned counsel for the State-respondents.
By means of the present writ petition, the petitioner has made following relief:
"(i) Issue a writ, order or direction in the nature of MANDAMUS directing the respondent authorities to constitute a new Medical Board in Etawah or any other District for the fresh Medical Examination of the Petitioner under the supervision of the medical experts.
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Petitioner has also approached this Court earlier by means of Writ-A No. 13548 of 2021 (Purshottam Narayan VS. State of U.P. Through Its Principal Secretary Home & 2 Others) for following relief:
(i) calling for records, (ii) quashing the result of the medical examination conducted by the Regional Health Examination dated 26th August, 2021, by which the candidatures of the petitioner has been rejected due to varicose vein, (iii) considering the candidature of the petitioner against the selected post, and (iv) conducting the medical test again."
The said writ petition has been dismissed by a Coordinate Bench of this Court vide judgment and order dated 18th October, 2021 in light of the detailed judgment of the Coordinate Bench of Court in the case of Ankit Kumar Vs. State of U.P. & 3 Others (Writ-A No. 5668 of 2021, decided on 3rd August, 2021).
It is the case of the petitioner that an advertisement was issued by the Police Recruitment Board of the State of Uttar Pradesh being Advertisement No. P.R.P.B. Ek.-1(138)/2018 II in the year 2018 for the post of Constable Civil Police and Constable PAC. The petitioner being fully eligible applied for the said post under general category and he was called for appearing in written test (computer based test). The petitioner appeared and qualified in the said written examination and thereafter appeared in Physical Efficiency Test/Physical Standard Test/Document Verification (P.S.T./D.V.), wherein he qualified, hence the petitioner was declared successful and his name was placed at serial no. 2435 of the select list for the post of Constable PAC under general category. On 13th August, 2021, the petitioner was called for medical examination, whereby he has orally been informed that his candidature has been cancelled as he is suffering from varicose vein but the copy of the rejection order has not been supplied to the petitioner. Feeling aggrieved by the same, petitioner filed an appeal before the Regional Medical Committee, Agra Division, Agra, wherein a date was fixed for medical examination on 22nd August, 2021 but the medical examination of the petitioner was conducted on 26th August, 2021. In the said medical examination, which was conducted under order of the Regional Medical Committee/Appellate Medical Board, the petitioner was unsuccessful. This time again, no written order was supplied to the petitioner as to for which reason, the petitioner was declared unsuccessful in both the medical examination. The petitioner was informed orally by the Appellate Medical Board that he was found unsuccessful in the medical examination due to Varicose Veins. The petitioner after having knowledge of the medical deficiency of the Varicose Veins, which was orally informed, approached the Ganesh Shanker Vidyarthi Medical College and Associated Hospital, Kanpur (U.P. Government Medical College) on 29th December, 2021 for detecting his deficiency of Varicose Veins, where the petitioner was medically examined with due diligence on 29th December, 2021 and he was absolutely found fit and no disease of Varicose Veins was seen by the Assistant Professor of Orthopedic Department of the G.S.V. Medical College, Kanpur.
Further , it is the case of the petitioner that since in two medical examinations conducted by the respondent-authorities the petitioner was orally informed by the Medical Boards that he is medically unfit due to the detection of Varicose Veins in the medical report of the petitioner, whereas in the medical examination conducted by the Assistant Professor of Orthopedic Department of the G.S.V. Medical College, Kanpur, wherein the petitioner was found fit and perfect , rather no deficiency of varicose veins was detected in the medical report of the petitioner, therefore, seeing the contradictory medical reports, in the interest of justice, this Court may direct the concerned respondent to constitute a new medical board in Etawah or any other district under the supervision of the Medical Experts to conduct the fresh medical examination of the petitioner.
Learned counsel for the petitioner submits that the petitioner has successfully passed the recruitment examination, physical efficient tests and physical standard test, is entitled to be appointed on the post of P.A.C. constable. The petitioner was wrongly shown medically unfit due to deficiency of Varicose Veins, because the medical examination conducted on 13th August, 2021 was in arbitrary manner and without following the procedure, rules and instructions given in the brochure inasmuch as the medical examination conducted by the Appellate Medical Board on 26th August, 2021 was nothing but empty formality, whereas in the medical examination conducted by of Orthopedic Department of the G.S.V. Medical College, Kanpur, the petitioner was found medically fit and deficiency of Varicose Veins was not found in the medical report of the petitioner. Learned Counsel for the petitioner, therefore, submits that considering the aforesaid contradictions, which occurred in the aforesaid medical examination reports of the petitioner, this Court may direct the concerned respondent to constitute a new medical board in Etawah or any other district under the supervision of the Medical Experts to conduct the fresh medical examination of the petitioner, so that the petitioner may be selected on the said post. In support of his aforesaid submissions, learned counsel for the petitioner has placed reliance upon following final judgments and interim orders of this Court:
1. Devesh Shahi (General Male Category) VS. State of U.P. & Others (Special Appeal No. 458 of 2017, final judgment of Division Bench of this Court dated 7th September, 2017;
2. Sandeep Kumar Vs. State of U.P. & Others (Writ-A No. 14726 of 2018, final judgment of a learned Single Judge of this Court dated 28th August, 2018;
3. State of U.P. & 3 Others VS. Lav Kumar Saroj and Another (Special Appeal Defective No. 639 of 2020, final judgment of Division Bench of this Court dated 23rd November, 2020;
4. Ashad Varsee Vs. State of U.P. & Others (Writ-A No. 8389 of 2019, final judgment of a learned Single Judge of this Court dated 8th July, 2019;
5. Vikram Singh Vs. State of U.P. & Others (Writ-A No. 13496 of 2021, interim order of a learned Single Judge of this Court dated 18th November, 2021;and
6. Ram Kumar Vs. State of U.P. & Others (Ram Kumar VS. State of U.P. & Others), interim order of a learned Single Judge dated 16.12.2021.
On the other-hand, learned Counsel for the State-respondents submits that there is no provision of re-medical in the case. The candidature of the petitioner has rightly been rejected by the Medical Boards referred to above. Apart from the above, learned Standing Counsel submits that nearly for the same relief specifically questioning the medical examination reports of the petitioner dated 13th August, 2021 and 26th August, 2021, the first medical examination conducted by the Medical Examination Board constituted by the Recruitment Board and second conducted by the Appellate Medical Examination Board, earlier the petitioner has filed Writ-A No. 13548 of 2021 (Purshottam Narayan VS. State of U.P. Through Its Principal Secretary Home & 2 Others), which has been dismissed by a Writ Court dated 18th October, 2021 after following observations:
"10. Learned counsel for the petitioner has not placed any material on record to demonstrate that report of Medical Board as well as Review Medical Board is erroneous or incorrect. This Court in the case of Ankit Kumar (supra) has held that the opinion given by the Medical Board as well as Review Medical Board should not be taken lightly and should be given due credence and it should not be annulled or set aside on the basis of the report of some private doctor or by a government hospital obtained by a candidate from outside.
11.Since, the controversy involved in the present writ petition has already been decided by this Court in the case of Ankit Kumar (supra), therefore, present writ petition is also dismissed with no order as to cost."
Learned counsel for the State-respondents, therefore, submits that this second writ petition nearly for the same relief cannot be entertained by this Court and the same is liable to be dismissed on this ground alone. The proper remedy available to the petitioner is to file a recall/modification application in the said writ petition or file a special appeal against the order passed therein.
I have considered the submissions made by the learned counsel for the parties and have carefully scanned the records of the present writ petition as well as the copies of the judgment and orders which have been relied upon by the learned counsel for the petitioner.
This Court finds that except for relying on the final judgments and interim orders of the Division Benches and Single Benches, learned counsel for the petitioner has failed to produce any provisions of law, rules, regulations etc. on the basis of which this Court may direct the respondent-authority to constitute a medical board for re-medical examination of the petitioner for a third term. Learned counsel for the petitioner has not produced any document, material or evidence, from which it is established that the medical examinations of the petitioner conducted by the Medical Board and the Appellate Medical Board are incorrect. This Court is also of the opinion that on the basis of a report issued by a Private Doctor or Doctor of a Government Hospital, which has not been authorized by the Recruitment Board, the opinion given by the Medical Board and the Appellate Medical Board, being an Expert Body, cannot be annulled and the same are entitled to be given due weight and credence.
The similar opinion, as expressed by this Court herein above, has already been dealt with by a learned Single Judge of this Court in the case of Diwakar Paswan Vs. State of U.P. & 6 Others reported in 2021 (1) ADJ 454, wherein the learned Single Judge has opined as follows:
"No material has been placed on record, or otherwise referred, to suggest that the opinion of the Medical Board or the Appellate Medical Board could in any manner be said to be casual, inchoate, perfunctory or vague. We are therefore of the view that the Medical Board being an expert body, its opinion is entitled to be given due weight, credence and value.
A similar view has been taken in recent judgments of this Court inVivek Kumarv.State of U.P.1 andMd. Arshad Khanv.State of U.P.2 wherein it was held that matters relating to medical evaluation of candidates in a recruitment process involve expert determination and it may not be desirable to supplant the procedure prescribed therefor as laid down under the relevant recruitment rules and taking any other view may have the effect of derailing the recruitment process.
Dealing with an identical challenge this Court in Prakash Singh Vs. State of U.P.3 held:
"The petitioner essentially calls upon the Court to rule on and evaluate the correctness of the reports submitted by experts in their fields. These submissions and reliefs have evidently been sought and addressed without bearing in mind the contours of the writ jurisdiction. The opinion of a Medical Board is the outcome of an evaluation by experts in the subject. Except in exceptional situations such as where a finding of unfitness is returned in violation or disregard of the standards prescribed or on grounds which may call upon this Court to consider the correctness of the opinion on a legal plain, it would be wholly inappropriate for this Court to either interfere with the same or substitute its own opinion with respect to the medical fitness of a particular candidate. Treading this path may also cause serious prejudice and jeopardise the recruitment process itself. The Court is constrained to enter this note of caution conscious of its own limitations with respect to adjudging the medical fitness or otherwise of a particular candidate. In the ultimate analysis, it would be pertinent to emphasise that such requests must be entertained with due care and circumspection."
The Delhi High Court in a recent decision handed down in the matter of Km Priyanka Vs. Union of India4 cautioned against interfering with the opinion formed by medical boards constituted for selection of members of the armed forces on the strength of certificates issued by private or civilian doctors in the following terms: -
"8. 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 Vs. Union of India 2020 SCC Online Del 951;Jonu Tiwari VS. Union of India 2020 SCC Online Del 855; Nishant Kumar Vs. Union of India SCC Online Del 808; and Shravan Kumar Rai Vs. 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 the terrain in which the recruited personnel are required to work, have formed an opinion that the 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 of the Forces."
Although learned counsel for the petitioner has placed reliance upon certain interim orders passed by learned Judges of the Court and which stand appended as Annexure 7 to the writ petition, the Court notes that none of those interim orders notice or deal with the principles as elucidated by the Division Bench in Rahul or the decisions in Manish Kumar and Prakash Singh noticed above.
It becomes pertinent to note that the opinions formed by the Medical and Review Boards have not been assailed by the petitioner on the ground of mala fides. A review of those decisions is sought solely on the basis of a contrary opinion rendered by a doctor of a government hospital. Permitting a reopening of a medical examination conducted by the respondents solely on that basis would set a dangerous precedent especially when the Court by virtue of its inherent limitations would be wholly unequipped to undertake a comparative analysis or evaluation of competing medical opinions. Medical fitness is a subject best left for determination by experts and should not be lightly interfered with unless it be shown to be contrary to the standards prescribed or otherwise be liable to be assailed on other judicially manageable parameters.
Quite apart from the consistent view taken by Courts on this question regard must also be had to the fact that the medical examination in the present case was undertaken in accordance with the provisions made in the statutory rules. Those Rules confer finality upon the opinions formed by the Medical Boards subject to an appeal against the same before a Review Medical Board. Those Rules do not envisage or contemplate a challenge to those reports based upon reports and opinions privately obtained by candidates. Permitting such a course of action would not only be contrary to the Rules which apply and bind the candidate but also result in derailing the recruitment process itself"
(Emphasis added) This Court, therefore, is in respectful agreement with the decision taken by the learned Single Judge in the case of Diwkar Paswan (Supra) and finds no good ground to entertain the present writ petition.
A Division Bench of this Court in the case of State of U.P. and others Vs. Bhanu Pratap Rajput, reported in 2021 (2) ADJ 451, has observed as follows:
"16. The medical examination by the Medical Board consisting of medical experts under Rule 15(g) cannot be said to be inferior to the physical standard test conducted by a team of non-experts. Therefore, we find that the finding recorded by the learned Single Judge in the impugned judgment that the assessment of physical standard by the committee constituted under Appendix-2 to the Rules, 2015 is liable to be preferred over the determination made by the Medical Board in terms of the Appendix-3, is not sustainable. Opinion of a committee of non-experts under Rule 15(d) for physical test of a candidate cannot override the opinion of the team of experts, i.e. Medical Board under Rule 15(g) of the Rules."
This Court also agrees with the observations made by the Division Bench of this Court in the aforesaid case.
So far as the two final judgments of the Division Benches of this Court as well as two final judgments of Single Benches in the cases of Devesh Shahi, Sandeep Kumar, State of U.P. and Ashad Varsee (Supras), which have heavily been relied upon the by the learned counsel for the petitioner is concerned, this Court finds that the same are not applicable in the facts o the present case, as the candidates of the aforesaid cases have not been non-suited on the ground of deficiency of Varicose Veins. Therefore, the same are clearly distinguishable from the facts of the present case.
The interim orders in the case of Vikram Singh and Ram Kumar (Supra) relied upon by the learned counsel for the petitioner are not binding upon this Court.
In the case of Vishnu Traders Vs. State of Haryana, reported in 1995 Suppl (1) SCC 461, the Apex Court has observed as under:-
"In the matters of interlocutory orders, principle of binding precedent cannot be said to apply. However, the need for consistency approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievance of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is an assurance of consistency, uniformity, predictability and certainty of judicial approach."
Similar view has been taken by this Court in Smt. Rampati Jaiswal Vs. State of U.P., reported in AIR 1997 All. 170.
Lastly, this Court finds substance in the submission made by the learned Standing Counsel that this second writ petition filed for nearly the same relief cannot be entertained by this Court. For same relief, second writ petition is not maintainable. The proper remedy available to the petitioner was to file a recall application in his earlier writ petition referred to above or to file a Special Appeal against the judgment and order passed in the said writ petition.
The present writ petition is devoid of merits, and, accordingly, dismissed.
There shall be no order as to costs.
(Manju Rani Chauhan, J.) Order Date :- 1.4.2022 Sushil/-