Punjab-Haryana High Court
Union Of India & Ors vs Balwinder Singh on 10 September, 2014
Bench: Satish Kumar Mittal, Arun Palli
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM Nos. 3218-19-LPA of 2014 and
LPA No. 1457 of 2014 ( O&M )
DATE OF DECISION : 10.09.2014
Union of India and others
.... APPELLANTS
Versus
Balwinder Singh
.... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE ARUN PALLI
Present : Mr. Hitesh Kaplish, Advocate,
for the appellants.
***
SATISH KUMAR MITTAL, J. ( Oral ) Respondent Balwinder Singh, after going through a physical test and the written examination, was selected as Constable (GD) in the ITBPF through the Staff Selection Commission. He belongs to the Scheduled Caste category. After his selection, before joining his duty, when he reported for medical examination at TPT Battalion ITBPF (Behlana Camp) near Airport, Chandigarh, on July 06, 2011, he was declared medically unfit on account of low distance vision. The grouse of the respondent was that he was not properly medically examined by the ITPBF authorities. Therefore, immediately he got himself medically examined at Civil Hospital, Fazilka, and vide Medical Certificate dated September 07, DASS NAROTAM 2014.09.17 16:08 I attest to the accuracy and authenticity of this document CM Nos. 3218-19-LPA of 2014 & LPA No. 1457 of 2014 ( O&M ) -2- 2011, issued by the Senior Medical Officer, Civil Hospital, Fazilka, his vision was found to be normal. The respondent sent the said certificate to the appellants seeking review of his medical examination. Accordingly, the re-medical examination of the respondent was conducted on November 17, 2011 and he was orally informed by the appellants that even in the review medical examination, he was not found medically fit on account of low distance vision. At that stage, by filing the writ petition (CWP No. 23294 of 2011), the respondent challenged the action of the appellants.
Vide order dated May 31, 2013, passed by the learned Single Judge, the said writ petition has been allowed. Against the said order, the instant intra court appeal under Clause X of the Letters Patent has been filed by the respondent.
The learned Single Judge, on examining the issue and after going through the documents available on record, has come to the conclusion that the respondent was declared medically unfit by the appellants without an basis. While coming to the said conclusion, the learned Single Judge has relied upon the medical certificates issued by the Senior Medical Officer, Civil Hospital, Fazilka (Annexure P-5) as well as the certificates issued by the Government Medical College, Chandigarh and the Post Graduate Institute of Medical Education and Research (PGI), Chandigarh, whereby the respondent was certified to be having normal vision. Not only this, the learned Single Judge has further noticed that in the DASS NAROTAM 2014.09.17 16:08 I attest to the accuracy and authenticity of this document CM Nos. 3218-19-LPA of 2014 & LPA No. 1457 of 2014 ( O&M ) -3- subsequent selection process for the post of Constable in Assam Rifles, the same authorities had declared the respondent medically fit. In these facts, the learned Single Judge found that the appellants have acted arbitrarily and without any justification while declaring the respondent medically unfit for the job. This observation has been made by the learned Single Judge on the basis of two conflicting stands taken by the appellants. In the joint reply filed by the Deputy Inspector General, North Western Frontier Headquarter, ITB Police Force, Chandigarh, it was averred that the respondent had appeared in the re-medical examination on November 17, 2011 at Composite Hospital, ITBPF, Chandigarh, and was found medically unfit. On the other hand, in an affidavit of the Deputy Regional Director, North Western Regional Office, Sector 9, Chandigarh, it has been deposed that the respondent did not even appear in the review medical examination on November 17, 2011. It appears that on November 17, 2011, review medical examination of the respondent was not conducted. After noticing all these facts, the learned Single Judge has drawn an inference that the appellants have denied appointment to the respondent on false pretext on account of certain extraneous considerations.
The instant appeal filed by the Union of India and others is barred in limitation by 230 days in filing and 117 days in re-filing. While arguing the applications (CM Nos. 3218-19-LPA of 2014) for condonation of delay, learned counsel for the appellants submits that after obtaining the DASS NAROTAM 2014.09.17 16:08 I attest to the accuracy and authenticity of this document CM Nos. 3218-19-LPA of 2014 & LPA No. 1457 of 2014 ( O&M ) -4- certified copy of the order passed by the learned Single Judge, the matter remained pending in the office of the I.G. North West Frontier, ITBPF. It has been further submitted that the arguing counsel advised the authorities that this is not a fit case, where appeal should be preferred by the department. In this regard, he has produced a letter dated July 29, 2013, addressed to the I.G. North-West Frontier, ITBP, which is taken on record. In spite of that, the appellants decided to file the instant appeal, due to which the aforesaid delay has occurred.
In this case, a candidate belonging to the Scheduled Caste category has been denied his right of appointment on the post of Constable (GD) in the ITBPF, on a false ground that he is not medically fit to join the duties, particularly when the same authorities in a subsequent selection process for the post of Constable in Assam Rifles found the same candidate medically fit. Not only that, the respondent was found medically fit by two prestigious Medical Colleges of the country. Therefore, in our opinion, the learned Single Judge has rightly come to the conclusion that the respondent has been denied his rightful claim of appointment on the post of Constable (GD) in the ITBPF for extraneous considerations. Learned counsel for the appellants could not show us any material to controvert the aforesaid conclusion reached by the learned Single Judge. Rather, it has been admitted that two prestigious medical collages of the country have found the respondent medically fit and even the appellants themselves in the DASS NAROTAM 2014.09.17 16:08 I attest to the accuracy and authenticity of this document CM Nos. 3218-19-LPA of 2014 & LPA No. 1457 of 2014 ( O&M ) -5- subsequent selection process declared the respondent medically fit to join his duties. So much so even the counsel advised the appellants that this was not a fit case for appeal but contrary to his advise the authorities choose to file this appeal. Further, there is hardly any explanation least satisfactory explanation for filing the appeal beyond limitation.
In view of the above, the applications for condoning delay in filing and re-filing the appeal as well as the appeal are dismissed with costs, which are assessed at ` 10,000/- to be paid by the Deputy JAG North West Frontier ITBPF (Behlana Camp) near Airport, Chandigarh, who took the decision to file appeal in this case.
( SATISH KUMAR MITTAL )
JUDGE
September 10, 2014 ( ARUN PALLI )
ndj JUDGE
DASS NAROTAM
2014.09.17 16:08
I attest to the accuracy and
authenticity of this document