Allahabad High Court
Rahul Kumar And 3 Others vs Union Of India And 3 Others on 5 November, 2020
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 83 Case :- WRIT - A No. - 9377 of 2020 Petitioner :- Rahul Kumar And 3 Others Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Kranti Kiran Pandey Counsel for Respondent :- A.S.G.I. Hon'ble Ajay Bhanot,J.
The petitioner has assailed the order dated 29.06.2020 of the appellate authority rejecting the appeal of the petitioner for Review Medical Exam for the post of Constable / GD.
Sri Kranti Kiran Pandey, learned counsel for the petitioner submits that the case of the petitioner is squarely covered by a judgement rendered by this Court in Writ-A No.5049 of 2020 (Rupesh Kumar Vs. Union of India and Others) along with companion writ petitions.
Sri Suchit Tandon, learned counsel for the Union of India contends that Dr. S.K. Chaudhary and Dr. S.K. Pandey, who issued the fitness certificates for foot deformity (B/L Little Finger), Rt. Foot deformity, B/L Nasal Polyp and Hyper extended elbow and swan neck deformity respectively, were not field specialists.
Heard learned counsel for the parties.
The petitioners were medically examined by the Medical Board. The candidature of the petitioners were invalidated on the ground of the opinion rendered by the Medical Board that the petitioners suffered from foot deformity (B/L Little Finger), Rt. Foot deformity, B/L Nasal Polyp and Hyper extended elbow and swan neck deformity . The petitioners were medically invalidated on account of foot deformity (B/L Little Finger), Rt. Foot deformity, B/L Nasal Polyp and Hyper extended elbow and swan neck deformity. The petitioners took the said rejection order of the Medical Board in appeal before the competent authority. The petitioners took out certificates from Sadar Hospital, Muzaffarpur, issued by Medical Officers, namely, Dr. S.K. Chaudhary and Dr. S.K. Pandey and appended the same to the appeal. The appeal has been rejected on the ground that Dr. S.K. Chaudhary and Dr. S.K. Pandey were not field specialists who could have certified that the petitioners did not suffer from the aforesaid ailments.
The same controversy engaged the attention of this Court in Writ A No. 5049 of 2020 (Rupesh Kumar Vs. Union of India and Others) along with companion writ petitions, wherein this Court vide a judgment and order rendered on 17.09.2020 held as follows:
"No doubt, under the scheme of recruitment, the conduct of computer based examination, preparation of merit list and force allocation of selected candidates was handled by the Staff Selection Commission, while other functions were performed by CAPFS/ MHA but Clause 15 of the advertisement which defines courts jurisdiction does not make any distinction based on the stages of recruitment or allocation of different functions to different bodies. The phrase "any dispute in regard to this recruitment" is wide enough to take within its purview disputes pertaining to all stages of recruitment irrespective of the body entrusted with conducting or holding any particular stage of recruitment. Resultantly, the submission based on division of functions amongst different bodies in conducting different stages of recruitment has no force nor the submission based on it relating to ouster of this Court's jurisdiction.
Reverting to the merits of the case, the short question which arises for consideration is whether the stand taken by the respondents in refusing to accept the appeal for holding review medical examination is legally sustainable or not. As noted above, the refusal to entertain appeals in all the cases was on analogous ground that the medical fitness certificate enclosed with the appeal was not by the concerned field specialist.
It is not in dispute that all the petitioners had alongwith their appeal annexed medical certificates issued in prescribed Form 3 by the doctors of the government hospitals. The certificate specifically states that the issuing authority (Doctor) was aware of the fact that the candidate had been rejected by the Medical Board of the respondent. The certificate also mentions that in the opinion of the issuing authority (Doctor) there was possibility of an error of judgment on part of the Medical Board which examined the candidate in the first instance.
The provision of review medical examination is contained in Clause 9E of the Recruitment Scheme, which is reproduced below for ready reference:-
"Review Medical Examination (RME): Ordinarily there is no right of appeal against the findings of the Recruiting Medical Officer or Initial Medical Examination. If any Medical Certificate is produced by a candidate as a piece of evidence about the possibility of an error or judgment in the decision of Initial Medical Board/ Recruiting Medical Officer, who had examined him/her in the first instance i.e. DME, an appeal can be accepted. Such Medical Certificate will not be taken into consideration unless it contains a note by the Medical Officer from Government District Hospital or above along with registration no. given by MCI/State Medical Council, to the effect that it has been given in full knowledge of the fact that the candidate has already been rejected and declared unfit for service by CAPF Medical Board, or the recruiting medical officer. If the appeal of a candidate is accepted by CAPF Appellate Authority, his/her Review Medical Examination will be conducted by CAPF RME Board. The decision of the CAPF's Review Medical Boards will be final. No appeal will be entertained against the finding of the second medical i.e. Review Medical Examination."
The essential ingredients of Clause 9E can be summarised thus:-
A- Candidate preferring appeal had to produce Medical Certificate as a piece of evidence about the possibility of an error of judgment in the decision of Initial Medical Board/Recruiting Medical Officer, who had examined the candidate in the first instance.
B- Such medical certificate would be taken into consideration only if it contains a note by the medical officer from Government District Hospital or above along with registration number given by MCI/State Medical Council, to the effect that it has been given in full knowledge of the fact that the candidate had already been rejected and declared unfit for service by CAPF Medical Board, or the recruiting medical officer.
C- If the appeal of a candidate is accepted by CAPF Appellate Authority, the candidate's review medical examination will be conducted by CAPF RME Board.
D- The decision of the review medical board would be final.
The above provision only contemplates that the medical certificate to be annexed with the appeal should be by the medical officer from Government District Hospital or above. It does not mention that the medical officer issuing the certificate should be a specialist in the field. However, in the communication sent to the petitioners informing them that they had been declared medically unfit, it was mentioned that in the event they apply for a review medical examination, they were required to submit medical certificate from a medical practitioner who should be specialist medical officer of Government District Hospital and above as per Form No.3. A sample Form 3 which is part of Writ Petition No.5049 of 2020 is reproduced below:-
"FORM No.3 OF CONSTABLE (GD) EXAM-2018 MEDICAL FITNESS CERTIFICATE Certified that Mrs/Ms. ..... Rupesh Kumar ... S/o Shri Chandra Dev Sah .. Age..22.. years, a candidate of Constable (GD) Exam-2018 in CAPFs whose photo and thumb impression are appended above duly attested by me was examined by me at Hospital .... Sadar Hospital, Jamui.... on date ...4.2.2020.
2. I the undersigned, have the knowledge that Mr./Ms.... Rupesh Kumar..... S/o Sri Chandra Dev Sah... has been declared Medically Unfit by the Medical Officer for Constable (GD) Exam 2018 om CAPFs due to ___HTN over weight____.
3. In my opinion this is an error of judgment due to following reasons :-_______Normal B.P.__________ Normal weight.
After due examination, I declare him/her medically fit for the said post.
Dated: 4.2.2020 Sd/- illegible Signature & Name with seal of Specialist Medical Officer of concerned field Registration NO. 233379 (MCI/State Medical Council) Designation DS..........
Name & Address of Govt. Hospital (District Hospital and above) Sadar Hospital Jamui Sd/ Rupesh Kumar Signature and name of candidate (in presence of Medical practitioner) Sd/- Upadhikshak, Sadar Aspatal, Jamui 4.2.2020 Attested by Sd/- Upadhikshak, Sadar Aspatal, Jamui 4.2.2020 Signature & Name with seal of Specialist Medical Officer of concerned field Note: (1) The findings of the Medical should be supported by Medical reports/ documents wherever applicable.
2) The Photograph thumb impression and signature of the candidates should be attested by Medical practitioner giving this Medical fitness Certificate. Un-attested forms shall be summarily rejected.
3) CAPFs shall not be responsible for postal delay."
As noted, the main provision in the Recruitment Scheme providing for the remedy of review medical examination only speaks of medical certificate from Government District Hospital or above, to be annexed with the appeal. The medical certificate annexed with the appeal shall be evidence of possibility of an error of judgment in the decision of initial medical board/recruiting medical officer, who had examined the candidate in the first instance. The doctor issuing the certificate is required to certify that it is being issued in full knowledge of the fact that the candidate had already been rejected and declared unfit for service by CAPF medical board, or the recruiting medical officer. He has to owe full responsibility of the facts certified by him. The object unambiguously was to prevent frivolous appeals being filed. If the documents were found in order, the appeal could be accepted. The acceptance of the appeal would not mean that the candidate has been declared or accepted to be medically fit. It would only pave way for constitution of a Review Medical Board by the respondents. The candidates would thereafter be subjected to medical examination once again by the Review Medical Board and only if he is found fit that he would be moving to the next stage of recruitment. The requirement that certificate should be by specialist medical officer of concerned field came to be incorporated for the first time in Form No.3 at the place where the doctor issuing the certificate has to sign, mention his name, and put his seal. In my considered opinion, the requirement of filing medical certificate alongwith the memo of appeal should be interpreted keeping in mind the object with which the said provision has been incorporated. It should not be overstretched, lest the very purpose of providing remedy of review medical examination may stand defeated. So interpreted, I am of the considered view that the Certificates annexed by the petitioners alongwith their appeal were sufficient to entertain the appeals.
The submission of learned counsel for the Union of India that Dr. Syed Naushad Ahmad, Deputy Superintendent, Government Hospital, Jamui who certified that two of the petitioners were not suffering from High BP/Hypertension was not competent to issue the same as he is not a cardiologist, has also no force. The qualifications of Dr. Syed Naushad Ahmad are not in dispute. He has done Masters in Surgery and being a general surgeon in a government hospital, he was competent enough to examine the petitioners and certify that they were not suffering from hypertension. Under the recruitment scheme, as noted above, the only evidentiary value of his certificate is in formation of prima facie opinion that there could be an error of judgment on part of the medical officer who examined the candidate in the first instance to warrant acceptance of the appeal for review medical examination of the petitioners. In the review medical examination, the petitioners will be subjected to medical examination by expert doctors. In case the petitioners were really not suffering from the ailments/ shortcomings pointed out during the initial medical examination, they would succeed. On the other hand, if they do suffer from the ailments/shortcomings, they would be discarded. There is no right of further appeal against the decision of the review medical board. In case the certificates furnished by the petitioners are relied upon at this stage, the respondents would not suffer except that they shall have to hold a review medical examination. On the other hand, if the petitioners really do not suffer from any ailment/shortcoming, as alleged, but their appeal for review medical examination is rejected at the very threshold on the above ground, they would suffer irreparable loss and injury. In all events, therefore, the appeals preferred by the petitioners for a review medical examination should not be dismissed in the manner as has been done by the respondents."
I find that this case is covered by and shall be guided by the judgement of this Court rendered in Rupesh Kumar (supra).
The order dated 29.06.2020 passed by the respondent no. 3- Presiding Officer, C.R.P.F, Muzaffarpur,GC, C.R.P.F, Muzaffarpur is quashed.
In consequence and as a result of above discussion, the writ petition is allowed.
The respondents are directed to constitute Review Medical Board for re-examination of the petitioners within a period of one week from the date of production of a computer generated copy of this order, downloaded from the official website of the High Court Allahabad alongwith a fresh copy of the representation.
The computer generated copy of such order be self attested by the petitioners (party concerned) along with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
After re-examination of the petitioners, the Review Medical Board shall render its findings on the medical fitness of the petitioners.
Order Date :- 5.11.2020/Nadeem Ahmad