Orissa High Court
Sushil Kumar Mohakud vs Director General Cisf And Others on 6 November, 2017
Equivalent citations: AIRONLINE 2018 ORI 368
Author: S.N.Prasad
Bench: S.N.Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.2811 of 2008
In the matter of an application under Articles 226 and 227 of the Constitution
of India.
---------
Sushil Kumar Mohakud ...... Petitioner
- Versus-
Director General,C.I.S.F. and others ...... Opposite Parties
For Petitioner : M/s Upendra Kumar Samal,
C.D.Sahoo,S.P.Patra
For Opp.Parties : Mr. Debendra Ku.Behera,C.G.C.,
Mr. S.D.Das, A.S.G. of India,
Mr. Anup Ku.Bose,A.S.G. of India,
Mr.J.K.Mishra, A.S.G. of India
Mr. Bimbisar Dash, C.G.C.
---------
PRESENT:
THE HONOURABLE SHREE JUSTICE S.N.PRASAD
---------------------------------------------------------------------------------------
Date of hearing and judgment: 6.11.2017
----------------------------------------------------------------------------------------
S.N.Prasad,J. In this writ petition the petitioner assails the order dated
20.2.2008passed by the Deputy Commandant, CISF KRTC, Mundali, Cuttack whereby and where under the petitioner has been directed to proceed for re-medical examination by the Board.
2. Case of the petitioner, in brief, is that he joined in service as Constable in C.I.S.F. 13.6.1994, while as Constable at K.R.T.C., Mundali the CISF has come out an advertisement to the fill up the post of Head Constable by way of limited competitive examination. The petitioner had participated in the written test, became successful, appeared in the viva voce and type test and became successful, hence he was called upon to medical examination at 2 Patna scheduled to be held on 11.9.2007 where he was medically examined but his colour vision was found defective. The petitioner has raised an objection by filing appeal before the Inspector General, CISF Eastern Sector Headquarters, Patna raising objection not to accept the medical examination report issued by the doctor which is not a specialist and he may be medically examined by the experts. The petitioner, on his own, was examined by eye specialist from the doctor of District Headquarter Hospital, Dhenkanal, SCB Medical College, where his eye vision was found to be normal. The case of the petitioner is that he has further been examined by the CISF medical doctors every and in the year 2005 but the doctor has found his colour vision as normal. The petitioner was directed vide letter dated 11.12.2007 to report at Eastern Sector, Patna on 24.12.2007 and then to proceed to N.H.C.C Saket, New Delhi for review by Standing Medical Board, the petitioner had reported, was examined and his colour vision was found to be defective. According to the petitioner that other members of the Board has not examined him rather only put their signatures. In the light of this objection, the petitioner was again directed to appear before the eye specialist, Safdarjung Hospital, New Delhi for re-medical examination vide order dated 1.1.2008 and accordingly he was examined and his colour vision was found to be within the normal limit. Grievance of the petitioner is that even though his colour vision is found to be normal, he was again directed to appear before the medical Board, CISF vide order 20.2.2008, the said order has been challenged by the petitioner in this writ petition.
3. Contention raised by the petitioner in this writ petition is that when he has already been examined on the direction of the Board itself at Safdarjung Hospital, New Delhi, there is no requirement to again send him for medical examination to check his colour vision.
Learned counsel for the petitioner relies upon a judgment rendered by the Hon'ble Delhi High Court in W.P.(C) No.5077 of 2008 along with other analogous cases disposed of on 22.3.2011. According to him, similar matter fells for consideration where the Hon'ble Delhi High Court after taking into consideration the fact that Constable who has been appointed in 3 the CISF has found to be normal on being medically examined but it has been held that there is no requirement to again examine the person for getting promotion.
4. Shri B.Dash, learned counsel for the Union of India has vehemently opposed the contention of the petitioner by stating that it is not disputed that the petitioner was appointed as Constable under the CISF and while working as Constable, he had appeared in the selection process to be promoted as Head Constable and requirement of the recruitment rule is that distant eye vision should be 6/6 and 6/9 of both eyes but it has been admitted by the petitioner that his eye vision is 6/6 and 6/6 as would be evident from the medical certificate submitted by him under Annexure-4 annexed to the writ petition and as such he, in terms of the requirement of eligibility, on physical assessment, is not found to be eligible to be promoted as Head Constable, but the authorities after taking into consideration the fact that the petitioner is working as Constable under the CISF, hence in order to provide a chance, and considering the conflicting medical reports, he has been directed to appear before the CISF Medical Board for his re-examination so that his case may be considered for promotion to the post of Head Constable. He submits that there is no malafide rather it is the bonafide approach of the CISF, since duty of the Head Constable is of high accountability and responsibility and as such a personnel to be promoted as Head Constable is supposed to be medically fit in all respects. It is also for the reason that promotion to the post of Head Constable, there is promotional channel to post of Assistant Sub-Inspector, Sub-Inspector and if the incumbent who is not medically fit, will be appointed in the CISF, efficiency of the CISF will ultimately suffer.
He submits that the judgment rendered by the Hon'ble Delhi High Court is totally on different fact because in that case main grievance of the petitioners was that they were not being sent for review medical examination and that has been taken note by the Delhi High Court by making observation 'what is difficult in allowing the person working of the Force to go for review medical examination but here in the instant case, the CISF itself 4 has taken a decision asking the petitioner to go for re-medical examination by way of review Medical Board and as such the said judgment is not applicable in the facts and circumstances of the present case. Learned counsel while relying upon the judgment has referred one line of the judgment of the Delhi High Court where it has been stated "even the same may not be required".
While referring to the line of the judgment of the Delhi High Court it has been submitted that in view of such observation it has been made by the Delhi High Court keeping in view the fact into consideration that when the person is working as Constable, there is no necessity to send for re- medical examination for getting promotion to the higher post.
5. Heard the learned counsel for the parties and perused the documents available on record.
6. It is evident from appreciation of the rival submission of the parties that the petitioner has got his engagement as Constable in the CISF in the year 1994 and while posted in the State of Odisha he had participated in the selection process to be promoted to the post of Head Constable. In the selection process he was declared successful in the written test, viva voce and type tests and as such he was directed to go for medical examination by the CISF doctor for physical assessment, but there he was found to have defective in the eye colour vision since he was suffering from colour vision. The petitioner has made objection to such medical report and he, on his own, was examined by the doctor posted in the SCB Medical College & Hospital, Cuttack where his colour vision was found to be normal, and on the strength of the said certificate when he has reported before the higher authority but the CISF authorities again sent him to Sufardang Hospital,New Delhi for re-examination where he was medically examined and it is found to be normal in eye colour vision. The authorities in that pretext has issued order on 20.2.2008 directing the petitioner to go for review medical Board so far as colour vision is concerned which is under challenge in this writ petition.
57. Learned counsel for the petitioner has relied upon the judgment of the Delhi High Court and as such this Court has thought it proper to first deal with the judgment rendered by the Delhi High Court, however, it has been submitted by learned counsel for the Union that the judgment of the Delhi High Court has been kept in abeyance by the order passed by the Hon'ble Apex Court in SLP(Civil) No.21152-21175 of 2013 on 17.1.2014 and the said SLP has been admitted for final hearing, but since the Delhi High Court judgment has been relied upon by the petitioner, it would be proper to deal with the said judgment before answering the issue raised by the petitioner.
8. The factual aspect involved in the judgment rendered by the Delhi High Court is that the petitioners were working as Constable under the CISF have been denied for review medical examination and in the light of the said aspect of the matter, several writ petitions have been filed. Hon'ble Delhi High Court while dealing with the issue at the relevant time has relied upon the policy and has passed order observing therein that 'there should be any difficult in sending the Constable to go for review medical board'. However, in the said judgment it has been observed that even that is not required, the reason for making this observation by the Delhi High Court is that since the persons are already working under the CISF, when they may work in the post why not in promoted post but that observation is not the ratio rather it is passing reference in the decision of the Delhi High Court.
But here in the instant case, the authorities have rather directed the petitioner to be examined by Review Medical Board and as such on fact the judgment of Hon'ble Delhi High Court is distinct, rather the action of the authorities can be said to be in consonance with the said judgment.
9. So far as the fact in the instant case is concerned, the CISF considering the eligible conditions of a candidate to be promoted to the post of Head Constable, one of the eligibility conditions is that perfection in eye with colour vision and as would be evident from the eligibility conditions fixed by the Ministry of Home Affairs, a candidate should have colour vision of 6/6 and 6/9 of both eyes but it is evident from the medical examination certificate 6 under Annexure-4 annexed to the writ petition, colour vision of the petitioner was found to be 6/6 and 6/6 and that led confusion to the opposite party-CISF authorities and in that aspect of the matter, order has been passed on 20.2.2008 directing the petitioner to go for medical examination to check his colour vision.
10. In view of this factual aspect, it is the considered view of this Court that while passing the impugned order, the opposite party has committed no illegality, hence the same is declined to be interfered with. However, it is up to the petitioner to comply with the order dated 20.2.2008, if he so wishes.
Learned counsel for the petitioner has submitted, at this juncture, that the petitioner is ready to go for his review medical board. He further submits that a date may be fixed for appearance of the petitioner for his examination before the review medical board, by the doctors who has got expert in Ophthalmology (eye specialist). Learned counsel for the Union of India representing the CISF has fairly submitted that if the petitioner is inclined to go for medical examination before the review medical Board, the CISF has got no objection.
11. In view of such submission, the writ petition is disposed of directing the petitioner to make a representation before the Director General, CISF, Lodhi Road, New Delhi along with certified copy of this order within two weeks from the date of receipt of copy of this Court. The Director General, in turn, after fixing a date for his medical examination, shall communicate to the petitioner by at least giving two weeks time for his reporting to the concerned medical Board, as per the decision taken by them vide order dated 20.2.2008. The concerned medical board shall examine the petitioner on the same day and discharge him by issuing medical certificate.
It is made clear that the members of the Review Medical Board shall be expert in Ophthalmology (eye specialist).
7It is also made clear that if the petitioner is found to be medically fit and is otherwise eligible, his case for promotion be considered in accordance with law.
As submitted by learned counsel for the petitioner, Misc.Case No.6203 of 2008 is dismissed as withdrawn.
.......................
S.N.Prasad,J.
Orissa High Court, Cuttack, Dated the 6th November,2017/Palai