Kerala High Court
Riju Mathew vs Union Of India
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 7TH DAY OF JANUARY 2013/17TH POUSHA 1934
WP(C).No. 11739 of 2012 (N)
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PETITIONER : -
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RIJU MATHEW,
S/O. LATE MATHAI.M (SI/JE/CIVIL),
CHENKILATHU HOUSE,
MATTOM NORTH,
THATTARAMBALAM.P.O,
MAVELIKKARA,
ALAPPUZHA, KERALA.
BY ADV. SRI.P.J.JOSEPH
RESPONDENTS : -
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1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK, NEW DELHI - 110001.
2. DIRECTOR GENERAL BORDER SECURITY FORCE,
BLOCK NO.10,
CGO COMPLEX,
LODHI ROAD.P.O,
NEW DELHI - 110 003.
3. DIRECTORATE GENERAL BORDER SECURITY FORCE,
(Pers Dte-Rectt SECTION),
BLOCK NO.10, CGO COMPLEX,
LODHI ROAD.P.O,
NEW DELHI - 110 003.
BY ADV. SRI.P.PARAMESWARAN NAIR, ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-01-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 11739 of 2012 (N)
APPENDIX
PETITIONER'S EXHIBITS :
EXT P1 : COPY OF THE LETTER NO. F-60011/20/10-STAFF/BSF-5819 REGARDING
ELIGIBILITY CONDITIONS AND OTHER APPOINTMENT PROCEDURE
DATED 06.04.2010 ISSUED BY THE 3rd RESPONDENT.
EXT P2 : COPY OF THE LETTER NO. Med/STS/Rectt(Min)/2010 DATED 22.10.2010
ISSUED BY THE CHIEF MEDICAL OFFICER, SIGNAL TRAINING SCHOOL
BSF BANGALORE.
EXT P3 : COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE
3rd RESPONDENT DATED 29.12.2010.
EXT P4 : COPY OF THE LETTER NO.12012/11/2010-Rectt/BSF/543 DATED 12.01.2011
ISSUED BY 3rd RESPONDENT.
EXT P5 : COPY OF THE LETTER DATED 04.02.2011 ISSUED BY THE PETITIONER.
EXT P6 : COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE CONSULTANT
ORTHOPEDICS, Govt. HOSPITAL MAVELIKARA.
EXT P7 : COPY OF THE LETTER NO.12012/11/2010-Rectt/BSF/9855 DATED 7th JUNE
2011 ISSUED BY THE 3rd RESPONDENT.
EXT P7(a) : COPY OF THE MEDICAL REPORT DATED 01.03.2011 ISSUED BY MAHAJAN
IMAGING CENTRE.
EXT P8 : COPY OF THE APPLICATION DATED 22nd JULY 2011 SUBMITTED BY THE
MOTHER OF THE PETITIONER.
EXT P9 : COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE AMRITA
INSTITUTE OF MEDICAL SCIENCES DATED 27th JUNE 2011.
EXT P10 : COPY OF THE MEDICAL CERTIFICATE DATED 01.07.2011 ISSUED BY
Dr. P. KOSHY, ORTHOPEDIC SURGEON, GOVT. HOSPITAL, MAVELIKARA.
EXT P11 : COPY OF THE LETTER NO. 12012/11/2010/RECTT/BSF/13550-53 DATED
23.09.2011 ISSUED BY THE 3rd RESPONDENT.
EXT P12 : COPY OF THE LETTER DATED 22.3.2012 SUBMITTED BY THE PETITIONER.
EXT P13 : COPY OF THE MEDICAL REPORT OF THE MEDICAL BOARD GOVT. T.D.
MEDICAL COLLEGE, ALAPPUZHA DATED 02.11.2011.
EXT P14 : COPY OF THE LETTER NO. 12012/11/2010-Rectt/BSF/5872 DATED 16.04.2012
ISSUED BY THE 3rd RESPONDENT.
WP(C).No. 11739 of 2012 (N)
RESPONDENTS' EXHIBITS :
EXT R1(a) : TRUE COPY OF THE OFFICE MEMORANDUM DATED 09.10.1998 ALONG
WITH THE SCHEME FOR COMPASSIONATE APPOINTMENT.
EXT R1(b) : TRUE COPY OF THE NOTIFICATION DATED 28.01.2004.
EXT R1(c) : TRUE COPY OF THE CALL LETTER DATED 28.09.2010.
EXT R1(d) : TRUE COPY OF THE MEDICAL EXAMINATION REPORT DATED 22.10.2010.
EXT R1(e) : TRUE COPY OF THE REVIEW MEDICAL EXAMINATION SHEET IN
RESPECT OF THE PETITIONER.
// TRUE COPY //
P.A. TO JUDGE
DMR/-
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.No.11739 of 2012
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Dated this the 7th day of January 2013
J U D G M E N T
Petitioner sought for appointment on compassionate grounds with the 2nd respondent Border Security Force (BSF) on account of the death of his father Late Sub Inspector/Junior Engineer (Civil) M.Mathai. Ext.P1 is the rules relating to recruitment for the post of Head Constable (Ministerial) [HC(Min)]. According to the petitioner, he fulfilled all conditions in terms with Ext.P1. But the 2nd respondent did not recruit him for the said post on the ground that he is medically unfit. The finding is that Ext.P2 report indicated that he was found to be unfit on account of "old operated case of fracture left humerus with left elbow joint deformity and slight wasting of left lower arm present". The petitioner was also given an opportunity to W.P.C.No.11739/2012 2 appeal and to produce evidence or medical opinion as proof of his fitness for appointment along with the appeal for considering the matter by a Review Medical Board. The petitioner submitted the said application and again he was found to be medically unfit. Ext.P7 is the said order. It is stated in Ext.P7 that he is unfit to the post due to "Supracondylar deformity of humerus due to healed injury. Mild expansion of distal humeral shaft is noted with mild endosteal cortical irregularity along the medical cortex. Small osteopenic areas with surrounding sclerosis may be due to previous presence of fixatory devices/ Small infective (abscess) areas."
2. The petitioner's mother submitted another representation along with further details like a certificate issued by the Amrita Institute of Medical Science and also by Doctor P.Koshy wherein it is certified that clinically the petitioner is having good range of movements and there is no evidence of infection. Exts.P9 and P10 are the said W.P.C.No.11739/2012 3 reports. This matter again seems to have been considered by the department and by Ext.P11, they still relied upon the Review Medical examination conducted by Review Medical Board on 28/02/2011 and since petitioner was found to be medically unfit, further action was not taken. It is further indicated by Ext.P11 that the post of HC (Min) in BSF is a combatised post and the certificate issued from Amritha Institute of Medical Science, Kochi is of general nature pointing towards his fitness for routine life activities, which may not be applicable for a combatised post in BSF.
3. In that view of the matter, the request was again rejected. This is followed by another representation dated 22/03/2012 requesting to consider his appointment on the basis of the report by the Government Medical College Hospital, Medical Board, Alappuzha which inter alia diagnosed that the petitioner does not have any problem. The said request was also rejected by Ext.P14 wherein it is stated that the re-consideration of the case of the petitioner W.P.C.No.11739/2012 4 for appointment on compassionate grounds was examined in detail, but could not be accepted due to reasons of his unfitness in the medical examination.
4. Under these circumstances, the writ petition is filed inter alia seeking to challenge Exts.P2 and P7 and for a direction to the respondents to appoint the petitioner to the post of HC(Min) in the 2nd respondent's office.
5. Counter affidavit is filed by the respondents inter alia contending that in so far as the appointment of the petitioner is to the BSF and notwithstanding the fact that recruitment is to the post of HC(Min), the petitioner will have to comply with the fitness as envisaged under Ext.P1. One of the main requirements for being recruited is the medical standard of the candidate which clearly indicates that he should be medically fit and he should not have any defect which may render him unfit in service in BSF.
6. They also relied upon Exts.R1(d) and R1(e) which would show that the Review Medical Board examination W.P.C.No.11739/2012 5 was conducted by the Board and the Doctors. Having come to such a conclusion, it may not be open for the petitioner to seek for verification of the correctness of the medical board examination.
7. Heard learned counsel for the petitioner and learned counsel for the respondents. It is not in dispute that selection to the post of HC(Min) as per Ext.P1 includes medical examination and a medical standard of the candidate as required by the department. Hence the Medical Board had considered the matter and found the petitioner to be unfit on account of reasons stated by them as evident from Ext.P2. The matter was reviewed further and Ext.P7 is the order passed after review. It is evident from Ext.R1(e) that a three member Board had certified Ext.R1(e) on the basis of which Ext.P7 had been issued. When an expert body like medical board presided by members appointed by BSF department, having taken into consideration the factual circumstances and the fitness of W.P.C.No.11739/2012 6 the petitioner had come to a conclusion, it may not be open for this Court to enter into a different finding unless it is shown that the decision had been taken in an arbitrary manner or without reference to the relevant documents. The 2nd respondent had, even after the Review Medical examination report was sent as Ext.P7, verified other reports like that of Amrita Institute of Medical Science and rejected. In fact, the petitioner did not have another opportunity other than the consideration by the review medical board.
8. It is the contention of the respondents that as far as civilians are considered the requirement of medical fitness would not be essential. But when concerned with the medical fitness in a Force such as BSF wherein even the ministerial staff should have to undergo physical training and such fitness which is required in the line of duty to be performed as well as the compatibility, especially in a circumstance where authorities have clearly indicated that W.P.C.No.11739/2012 7 the recruitment is in a combatised post, it is definitely for the Doctors who are members of the Medical Board of BSF to consider the requirements as to whether the petitioner is fit or unfit for the said post. The result of the examination by the Medical Board of the BSF will be much more important than by the members in a civilian society. In that view of the situation, I do not think that petitioner has made out a case for this Court to interfere with Exts.P2 and P7.
9. Still further, learned counsel for the petitioner requests for re-consideration of the matter by the review medical board in the light of the subsequent certificates which are available. I do not think that as matters stand today especially in the light of Exts.P11 and P14 further direction is to be issued to the respondents to reconsider the matter. The consideration have become final in view of Exts.P11 and P14.
10. In that view of the matter also, I do not think that any further direction is required to be issued. Accordingly, W.P.C.No.11739/2012 8 since no relief could be granted in the matter, the writ petition is dismissed.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.11739/2012 9 W.P.C.No.11739/2012 10