IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT :SERVICE MATTER WP(C) No.8133/2011 & CM No.2004/2012 Date of Decision:

Transcription

1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT :SERVICE MATTER WP(C) No.8133/2011 & CM No.2004/2012 Date of Decision: Deepak Kumar Through Mr.A.K.Trivedi, Advocate. Petitioner versus Union of India & Ors. Through Mr.Anuj Aggarwal, Advocate. Respondents CORAM: HON BLE MR. JUSTICE ANIL KUMAR HON BLE MR. JUSTICE SUDERSHAN KUMAR MISRA ANIL KUMAR, J. CM No.2004/2012 This is an application seeking condonation of 11 days delay in filing the counter affidavit/reply to the show cause notice. Issue notice to the non-applicant/petitioner. Mr. A.K.Trivedi, Advocate, accepts notice. For the reasons stated in the application, it is allowed and the delay of 11 days in filing the counter affidavit / reply to the show cause notice is condoned and the counter affidavit is taken on record. The application stands disposed of. WP(C) No.8133/2011

2 1. The writ petition is taken up for hearing with the consent of the learned counsel for the parties. 2. The petitioner has prayed for a direction for the constitution of an Independent Medical Board at the Army Hospital (R&R), Delhi Cantt., or any other Govt. Hospital to re-examine the petitioner and if the petitioner is found fit to consider his appointment to the post of Constable (GD) in CPF and to declare the action of the respondents declaring the petitioner as partially colour blind incorrect, in view of the medical fitness given to the petitioner stipulating the absence of colour blindness in the petitioner by two Govt./Civil Hospitals. 3. The petitioner had applied for recruitment to the post of Constable (GD) in the Central Police Forces i.e. CISF under the OBC category and he was allotted the Roll No and was issued an admission certificate for appearing in the written examination on 5th June, The petitioner appeared in the written examination and was declared successful and was thereafter directed to appear for the medical examination to be held on 21st July, 2011 at 103 RAF Bn, Wazirabad, Delhi. 4. On the basis of the medical examination conducted by the respondents, he was however, declared unfit on account of partial colour blindness. 5. The petitioner, thereafter, got himself medically examined at Dr.B.R. Ambedkar Hospital, Rohini, Delhi on 4th September, 2011 and submitted an appeal on 7nd September, 2011 along with a certificate of his fitness. 6. The petitioner asserted that he had sent his request for a review/appeal medical board along with the medical fitness certificate, however, he did not retain a copy of the same. 7. Since, the petitioner did not get any response from the respondents, he got himself medically examined again at Sanjay Gandhi Memorial Hospital, Mangolpuri, New Delhi on 1st November, The said Hospital also held that the petitioner is fit and does not have partial colour blindness. Thereafter, the petitioner has filed the present writ petition praying for the constitution of an independent medical board to re-examine the petitioner. The petitioner has also relied on the decision of a Division Bench of this Court in the matter of Naresh Kumar v. Union of India, WP(C) No.

3 3125/2011 relating to the Central Reserve Police Force wherein it was observed that in 30 cases, the candidates who were declared to be medically unfit by the CRPF, when referred to the Army Hospital (R&R) twenty seven of them were found to be fit. The Division Bench in the circumstances had directed the Registrar of the Army Hospital (R&R) to constitute a board of specialist, in order to examine the candidate and to render an opinion to the Director General, CRPF and in case the report is found to be in favor of the candidate, then to implement the entitlement of the said candidate for the employment with the CRPF. 8. The writ petition is contested by the respondents contending, interalia, that the petitioner was informed about the finding of the medical board whereby he was declared to be suffering from partial colour blindness and that the Form No. CAPF s (Constable (GD)/1) was also issued to the petitioner for the submission of his appeal and the medical fitness certificate seeking review medical examination. According to the respondents, the petitioner did not submit his medical certificate in the given prescribed format for appeal to seek a review medical examination, therefore, the application of the petitioner was rejected. The respondents also contended that a total of 120 such applications were rejected as the same were not submitted according to the prescribed format. The respondents have also given the summarized details of the total number of applications received by the Appellate Authority for seeking review medical examination. 9. The respondents emphasized that though the petitioner had preferred an appeal before the Appellate Authority, however, the said appeal was rejected as the petitioner did not submit his appeal in the given prescribed format as it was without the medical certificate specifying the medical fitness of the petitioner, issued by an authorized medical practitioner. 10. This Court has heard the learned counsel for the parties in detail. This is not disputed that the petitioner had submitted an appeal against the finding of medical unfitness on account of partial colour blindness as per the report of the medical board. The plea of the respondents that along with the appeal, the petitioner had not submitted the requisite medical fitness certificate in requisite format cannot be accepted as the appeal of the petitioner for review medical board was not rejected on this ground, nor such ground was communicated to the petitioner.

4 11. The respondents have produced a medical fitness certificate given by the petitioner, a copy of which has been filed by the respondents as Annexure R-2 which is in the Form No.CAPF s (Constable (GD)/3). The certificate categorically stipulates that the concerned doctor was aware of the fact that the petitioner had been declared medically unfit by the medical officer in the combined recruitment of Constable (GD) in CAPF s in the year due to partial colour blindness as he was allegedly unable to read the green and red lines. The certificate further states that in the opinion of the Senior Resident of Department of Eye, Dr. BSA Hospital, GNCT Sector-6, Rohini, Delhi 85, this finding is on account of error of judgment as the colour vision of the petitioner is within the normal limit (WNL) as per Ishihara chart and that the petitioner was declared medically fit for the said post after due examination. 12. The respondents have also produced a copy of the communication dated 20th October, 2011 stipulating that along with the Form No.CAPF s, the civil doctor has not given any reason, nor has the fitness certificate been annexed with the form. The respondents though have contended that the said communication dated 20th October, 2011 had been sent to the petitioner, however, nothing has been produced to show that the said communication had indeed been issued to the petitioner. The petitioner specifically denied that after he had applied for the review medical board, he received any intimation from the respondents. The petitioner rather contended that when he did not hear anything from the respondents, he got himself medically examined again from Sanjay Gandhi Memorial Hospital, Mangolpuri, New Delhi on 1st November, 2011 and thereafter filed the present writ petition. 13. Though, the respondents have contended that the reason for rejecting the appeal of the petitioner is that the medical fitness certificate was not given in the prescribed format, however, a perusal of the medical fitness certificate dated 13th December, 2011 submitted by the petitioner clearly gives the reasons for the error in the judgment of the respondents medical board, as the petitioner s colour vision is within the normal limit as per Ishihara chart, as endorsed by a certified medical practitioner. The plea of the respondents that the medical fitness certificate was not annexed by the petitioner is also negated by the fact that the medical fitness certificate itself incorporates the certificate of the medical fitness obtained by the petitioner which is duly signed by Sh.Dimpy Kumar, Senior Resident, Department of Eye, Dr. BSA Hospital, GNCTD Sector 6, Rohini, Delhi.

5 14. The allegation that the petitioner did not apply in the appropriate format, relates to a procedure and unless otherwise mandated by the language of the procedural law which makes the compliance of the procedure mandatory, in such facts and circumstances, the procedure has to be considered as directory. The right of the petitioner to have a review medical board in view of the contradictory opinions of the other medical specialist is not to be denied on such factors in the facts and circumstances. There cannot be such a strict compliance so as to completely negate the right of the petitioner to be examined by a review medical board. 15. The essential conditions for a candidate to be examined by a review medical board is that a candidate must get himself examined from a medical practitioner and apply for an appeal/review medical board along with the requisite fees within the time prescribed by the respondents. The further condition is that the appeal is to be signed by the candidate and the medical certificate is to be signed by the doctor. 16. The respondents had communicated the result of his medical examination i.e. declaring him partially colour blind and unable to read the green and red line by letter dated 31st August, The respondents in the said communication dated 31st August, 2011 in para 2 had given the terms and conditions for filing an appeal against the findings of the medical examination which are reproduced as under: 2. In case he/she prefers to file an appeal against the findings of medical examination. He/she is advised to apply for review medical examination in the enclosed form No.CAPF s (Constable (GD)/2 provided by P.O.) along with demand draft for `25/- in favour of DIGP, RAF, NEW DELHI PAYABLE AT SBI R.K.PURAM (CODE-1076) NEW DELHI. (address to be filled up by Medical Board who conducted medical examination of candidates) after necessary medical certificate from the medical Practitioner as per Form No.CAPF s (Constable (GD)/3. so to reach to the address within a period of 15 days from the date of medical Examination i.e. positively by failing which his/her candidature for combined recruitment of Constable (GD) in CAPF s for the year shall be treated as cancelled without any further notice. If the appeal is not signed by the candidate and/or if the Medical fitness certificate is not signed by the doctor appeal will be summarily rejected. 17. From the perusal of the above noted condition as communicated to the petitioner and the medical fitness certificate given by the petitioner duly

6 signed by the doctor who had given medical fitness certificate and the appeal which was also signed by the petitioner, the reason for rejection as given by the respondents in their letter dated 20th October, 2011 is not made out. 18. From the documents produced by the respondents it is evident that the medical fitness certificate dated 13th December, 2011 is in the appropriate format whereas, the petitioner s request for the review medical examination was rejected by letter dated 20th October, However, in the counter affidavit filed on behalf of the respondents the ground taken is not that the medical fitness certificate dated 13th December, 2011 is not acceptable to the respondents. 19. In the facts and circumstances and for the foregoing reasons, it will be just and equitable and in the interest of justice to direct the respondents to constitute a review medical board for the petitioner to examine whether he is medically fit or not in accordance with their requirements. 20. Therefore, the writ petition is allowed and the respondents are directed to constitute a review medical board for examining the petitioner to ascertain whether he suffers from partial colour blindness or not. The intimation regarding the constitution of the review medical board and the date on which the petitioner has to appear before the review medical board be communicated to the petitioner and his counsel at least two weeks before the date of examination by the Review Medical Board. 21. With these directions, the writ petition is disposed of. The parties are, however, left to bear their own costs. 22. Needless to say that the respondents shall keep one post of Constable (GD) vacant in terms of order dated 11th January, 2012 till the respondents decide whether the petitioner is entitled for enlistment to the post of Constable (GD) or not after the decision of the review medical board. With these directions, the CM No.18328/2011 is also disposed of. Sd/- ANIL KUMAR, J.

7 Sd/- SUDERSHAN KUMAR MISRA, J.