Patna High Court - Orders
The Col. Director vs Niraj Kumar on 20 August, 2019
Bench: Chief Justice, Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.849 of 2019
In
Civil Writ Jurisdiction Case No.4081 of 2009
======================================================
The Col. Director, Rtg. States H.Q. Rtg. Zone Bihar/Jharkhand, Danapur,
Patna
... ... Appellant/s
Versus
Niraj Kumar & Ors.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. S.D. Sanjay, Addl. S.G.
Ms. Kanak Verma, C.G.C.
For the Respondent/s : Mr.Surendra Kumar Singh, Sr. Advocate
Mr. Raj Dular Sah, Advocate
Mr. Praveen Prakash, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
2 20-08-2019We have heard Shri S.D. Sanjay, learned Additional Solicitor General of India for the appellant and Shri Surendra Kumar Singh, learned senior counsel for the respondent- petitioner.
The dispute giving rise to this appeal is about the engagement of the respondent-petitioner as a Postal Assistant in the Army Postal Services. The recruitment process which has given rise to the controversy is about a decade old. The respondent-petitioner was offered appointment and had also been physically examined. This offer of appointment concluded by the letter dated 22/24.04.2008. He also assumed charge as Patna High Court L.P.A No.849 of 2019(2) dt.20-08-2019 2/6 Office Assistant in the office of the Senior Superintendent of Post Office, Saran Division, Chapra from where he was relieved and directed to report at Danapur for being sent on training. Instead of being sent on training, he was directed to report at the headquarters at Danapur for medical examination and according to the respondents he came to be declared medically unfit on 29th July, 2008. He was referred to a re-medical test on the strength of such unfitness to the Military Hospital, Namkum, Ranchi. According to the respondent-petitioner, no such medical test was carried out, but the respondents took a stand before the learned Single Judge that the medical test had been carried out from Namkum from where he had been declared unfit.
On this dispute having arisen before the learned Single Judge, an order was passed on 19th March, 2018 to the following effect:
"In the present case, the petitioner was earlier selected in the Army Postal Service and, later on, he was again medically re-examined and was declared unfit.
Learned counsel for the petitioner submits that the petitioner was never re-examined, so, the question of declaring unfit by the Medical Specialists, Military Hospital, Namkum does not arise.
The outcome of this case hinges upon the Patna High Court L.P.A No.849 of 2019(2) dt.20-08-2019 3/6 re-medical examination of the petitioner. Learned counsel for the petitioner submits that once the petitioner has been declared fit by the Medical Board, he cannot be called for re-medical test and can declared him to be unfit as there is no such rule for the same.
Even if there is no rule but, fitness of an army man can be examined at any time as fitness is the hallmark of a soldier. So, the ground that has been taken for re-medical test, this Court feels that it is not of an assistance and the same is rejected. However, the Union of India is directed to produce the re-medical test which has been conducted by the Army Medical Unit at Army Hospital, Namkum.
Put up this case after two weeks under the same heading."
The respondent-petitioner, therefore, was directed to produce the re-medical test report, but unfortunately, no such document was filed before the learned Single Judge. We can gather that insofar as the present appellant is concerned, the said department was arrayed as Respondent No. 5 in the writ petition and a counter affidavit was filed on its behalf through Lieutenant Colonel Prakhar Tiwari. The said affidavit is the only document which was there on behalf of the Respondent No. 5 which does not contain any material nor any further material Patna High Court L.P.A No.849 of 2019(2) dt.20-08-2019 4/6 was filed so as to satisfy the query of the Court dated 19 th March, 2018.
The learned Single Judge while hearing the matter finally on 18th July, 2018 came to the conclusion that in the absence of any proof of the fact of any such medical unfitness having been reported, the respondents had failed to dislodge the claim of the respondent-petitioner and, therefore, he should not be precluded from joining the post of Postal Assistant. Accordingly, the petition was allowed with a direction to allow the respondent-petitioner to join on the post.
It appears that a Review Petition was filed before the learned Single Judge and it is urged that along with the said Review Petition the Respondent No. 5 had also brought on record the indication as recorded in the register about the carrying out of the medical examination of the respondent- petitioner where he was declared unfit. However, so far as the records of the said medical examination are concerned, the same was admitted as having been destroyed. It is therefore in this background that the Review Application came to be rejected, whereafter the present appeal was filed.
Along with the appeal, the said document pertaining to the extract of the register has been filed to urge that the Patna High Court L.P.A No.849 of 2019(2) dt.20-08-2019 5/6 medical examination had been carried out and consequently it cannot be said that the respondent-petitioner had been declared unfit without carrying out any procedure.
Apart from this, we also find this appeal to be heavily barred by limitation of 342 days. For the present, we are not inclined to condone the delay or even entertain the appeal as prima facie if the admitted position is that the records have been destroyed by the respondents themselves, then there is no report in existence so as to satisfy the query raised by the High Court under the order dated 19th March, 2018 or even before us.
It is stated at the Bar that the respondent-petitioner has filed a Contempt Application, which is stated to be pending in which an opportunity has been given for purging the contempt.
Shri S.D. Sanjay has submitted that an adjournment be granted to enable him to further assist this Court, but we find that the adjournment should be taken as a ground not to purge the contempt leaving it open to the appellants to explore the possibility of accommodating the respondent-petitioner keeping in view the fact that prima facie we are not inclined to entertain the appeal.
List on 23rd of September, 2019.
Patna High Court L.P.A No.849 of 2019(2) dt.20-08-2019 6/6 This order may be placed before the learned Judge proceeding with the contempt.
(Amreshwar Pratap Sahi, CJ) (Anjana Mishra, J) P.K.P./-
U