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Judgment
ORDER
Dr. Anand S. Khati, Member (A)
The present O.A. has been filed by the applicant challenging the order dated 06.06.2022 issued by the respondents declining his appeal for Review Medical Examination. After being successful in all the examinations, the applicant was declared „unfit‟ for the post of Sub-Inspector in Delhi Police and Central Armed Police Forces (CAPF) Examination, 2020 in the Detailed Medical Examination due to „Osteochondroma‟, against which he had applied for Re-Medical Examination, which has been declined by the respondents vide the ibid order. Hence, he filed the present O.A. seeking the following relief(s):
“a)Directing the respondents to place the relevant records pertaining to the present OA before their lordships for the proper adjudication in the matter.
b)Quash and setting aside the impugned order dt. 06.06.22 (Annexure A/1) issued by the respondents declining the appeal of the applicant for Review Medical Examination deliberately, biased, perverse and in arbitrary manner, without application of their mind by a non speaking, unreasoned, bald and cryptic order and thereafter;
(c)Directing the respondents to consider the case of the applicant for Review Medical Board as After careful examinations the applicant has already been specifically and categorically declared fit for recruitment to the post of SI in Delhi Police from Gandhi Hospital Sec'bad further followed by second opinion of Military Hospital, Secunderabad accordingly process the case of the applicant for further selection and appointment of the applicant if found fit with all other consequential benefits.
(d)Allowing the OA of the applicant with costs.
(e)Any other fit and proper relief may also be granted.”
The factual matrix of the case as narrated by the learned counsel for the applicant is that on 17.06.2020, the Respondent No.2 invited online applications for recruitment to the post of Sub-Inspector in Delhi Police and CAPF Examination, 2020. Pursuant to which, the applicant applied for the same and was allotted Roll No.8601003940. After qualifying in the Computer Based Examination (Paper-1), Physical Standard Test/Physical Endurance Test (PST/PET) and Paper-II examination, he was called for Detailed Medical Examination held on 18.04.2022 (Annexure A/2) at Composite Hospital, CRPF, Group Center Campus, Barkas, Chandrayangutta, Hyderabad-500005 (Telangana), however, he was declared „unfit‟ on account of „Osteochondroma‟ on the left scapula bone and was advised to submit an appeal after getting treatment of the said ailment. The applicant, after getting treatment from Gandhi Hospital, Secunderabad, was declared medically „fit‟ by the competent medical authorities. Thereafter, he submitted an appeal along with the fitness certificates duly issued by the competent medical authorities of Gandhi Hospital, Secunderabad, followed by Military Hospital, Secunderabad declaring the applicant medically fit for appointment to the post of Sub-Inspector in Delhi Police. The said appeal against the Detailed Medical Examination was processed by Commandant (Adm/Law) with the IG (Med), CH, CRPF, Hyderabad, Telangana for further necessary action, however, the respondents declined the same vide impugned order dated 06.06.2022. Para 4 of the order reads as under:
“4.….there lies no provision in Medical Guidelines issued by MHA for Recruitment in CAPFs that any fitness certificate issued from Medical Practitioner would entitle a candidate to be declared „Fit‟ for Recruitment. The Medical Certificate produced by a candidate is only treated as a piece of evidence about the possibility of an error of judgment in the decision of Initial Medical Board.”
In earlier round of litigation, the applicant filed OA No. 1650/2022 challenging the inaction on the part of the respondents in considering and finalizing his appeal, however, withdrew the same with liberty to file another O.A. challenging the Appellate Order. Hence, the present O.A. has been filed challenging the order dated 06.06.2022 passed by the respondents rejecting his appeal dated 25.05.2022. Learned counsel for the applicant by placing reliance on the order dated 17.07.2023 passed by a Coordinate Bench of this Tribunal in O.A. No.1889/2023, also followed in O.A. No.2007/2023 disposed of vide order dated 31.07.2023, made a limited prayer to direct the respondents to conduct re-medical examination of the applicant.
While opposing the O.A., Mr. Hanu Bhaskar, learned counsel for the respondents drew our attention to the judgment passed by the Hon‟ble High Court of Delhi in an identical matter bearing W.P. (C) No. 8692/2019 titled Dharmraj Jat vs. UOI & Anr. dated 09.08.2019. The relevant portion of the judgment reads as under:-
“This Court has repeatedly held that it is not open to the candidates who have been found to be medically unfit by Medical Board, or the Review Medical Board to obtain favourable medical reports on their own, and on that basis, to seek a fresh examination. It is not the petitioner‟s case that the Medical Board, or the Review Medical Board, or any of the doctors who examined him had an axe to grind against him. Such like Medical Boards and the Review Medical Boards examine hundreds and thousands of candidates in routine, and they are manned by competent professionals. There is no reason to assume that they have not performed their duties in a competent manner and with honesty.
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This Court has held that it is the recruiting agency/employer who is aware of the medical standards that they are looking for – considering the nature of the job involved. Obviously, the Doctor, who issued the medical certificate from AIIMS was not aware of the same and this is clearly reflected from his certificate itself." He also placed reliance upon another judgment in WP(C) No. 10783/2020 dated 21.12.2020 titled Km. Priyanka vs. Union of India & Ors., wherein it has been held as under:-
“…..once no mala fides are attributed and the doctors of the Forces who are well aware of the demands of duties of the Forces in the terrain in which the recruited personnel are required to work, have formed an opinion that a candidate is not medically fit for recruitment, opinion of private or other government doctors to the contrary cannot be accepted inasmuch as the recruited personnel are required to work for the Forces and not for the private doctors or the government hospitals and which medical professionals are unaware of the demands of the duties in the Forces.”
Further, the learned counsel for the respondents referred to para 6 of the counter affidavit, which reads as under:-
“6.Subsequently, Review Medical Examination (RME) of the Applicant was conducted on 19/20.04.2022 by a duly constituted Review Medical Board consisting of 03 Medical Officers at Composite Hospital, CRPF Group Centre, Hyderabad, in which he was examined with reference to the ground of his rejection in Detailed Medical Examination (DME). Further, the Review Medical Board declared him medically „unfit‟ due to 'Osteochondroma (Lt) scapular as this benign tumor has tendency to grow as per opinion by Orthopaedician'. A copy of Review Medical Examination dated 19/20.04.2022 is annexed herewith and marked as Annexure R-7.” He vehemently argued that the applicant was declared medically „unfit‟ in Detailed Medical Examination as well as in the Review Medical Examination by a Medical Board consisting of three doctors, after following the proper procedure. As per the policy on the subject, the decision of the Review Medical Board is final and no appeal is permissible against its findings. Moreover, the opinion of Medical Practitioner is not binding on the recruiting authorities, in terms of the judgments passed by Hon‟ble High Court of Calcutta in WPA No.10087/2020 titled Jahangir Baidya vs. Union of India & Ors., decided on 23.12.2020 and WPA No. 10498/2020 titled Sagar Chaudhary vs. Union of India & Ors., decided on 24.12.2020.
Heard Mr. Anoop Kumar, learned counsel for the applicant and Mr. Hanu Bhaskar, learned counsel for the respondents and also gone through the pleadings/written synopsis and the judgments placed on record.
The main facts are not in dispute and the prayer made by the applicant is confined to re-medical examination of the applicant, in terms of order passed by the coordinate bench of this Tribunal in identical O.A. No. 1889/2023 dated 17.07.2023, followed in O.A. No. 2007/2023 dated 31.07.2023.
Indisputably, the applicant is stated to have been successful in all other stages of selection, but declared „unfit‟ in the Detailed Medical Examination due to „Osteochondroma‟, which cannot said to be a complex disease. From a perusal of the medical reports, it is further evident that after getting treatment, the applicant was declared „fit‟ by the medical authorities of Gandhi Hospital, Secunderabad as well as Military Hospital, Secunderabad. Relying upon the judgments passed by the Hon‟ble High Court of Delhi in WP(C) No. 8692/2019 dated 19.08.2019 and in WP(C) No. 10783/2020 dated 21.12.2020 as well as on the judgments passed by the Hon‟ble High Court of Calcutta, an objection has been raised by the learned counsel for the respondents that the Tribunal is precluded from adjudicating the present issue. However, as we are not deciding the medical fitness or otherwise of the applicant and only considering his prayer confined to re-medical examination, the aforesaid judgments cannot be made applicable to the present case.
We have also gone through the recent judgment dated 17.07.2023 passed by the Coordinate Bench of this Tribunal in O.A. No. 1889/2023 titled Manjeet Dhaka vs. Staff Selection Commission & Anr. The operative portion of the same is extracted below for ready reference:
“7.We are conscious of the fact that the applicant is stated to have been successful in all the stages of selection for the post of Sub Inspector in Delhi Police and hence deserves a fair chance for appointment to a post for which he has successfully competed on his own merits. This ofcourse is subject to his meeting the statutory requirements which include medical fitness. In our opinion, he is deserving of another opportunity for a fresh medical examination.
8.The present OA is accordingly disposed of with a direction to the competent authority amongst the respondents to conduct a fresh medical examination of the applicant by way of constituting an appropriate medical board in any government medical hospital except the BSF Hospital which has already conducted the initial and the review medical examination.
9.Needless to say that the competent authority shall thereafter pass appropriate orders with respect to the candidature of the applicant on the basis of the outcome of such an independent/ fresh medical examination.
10.The directions contained herein shall be complied with within a period of four weeks from the date of receipt of a certified copy of this order. In the event of the applicant being declared medically fit and subject to his meeting other criteria, he shall be given appointment forthwith. The applicant, in such an eventuality, shall also be entitled to grant all consequential benefits, however, strictly on notional basis.” The ibid judgment was also followed in another decision dated 31.07.2023 passed in O.A. No. 2007/2023 titled Karan Singh vs. Union of India & Ors.
We agree with the decision taken by the Coordinate Bench of this Tribunal in Manjeet Dhaka (supra) followed in Karan Singh (supra), already quoted above. Admittedly, since the applicant stated to have been successful in all other stages of selection process except in the Detailed Medical Examination, he also deserves to get a fair chance for appointment to the post of Sub-Inspector in Delhi Police by conducting re-medical examination from an independent medical board, as was provided to the applicants in those OAs.
Accordingly, in the light of decision in Manjeet Dhaka (supra) followed in Karan Singh (supra), we quash the impugned order dated 06.06.2022 and direct the competent authority amongst the respondents to conduct a fresh medical examination of the applicant by way of constituting an appropriate Medical Board in any Government hospital, independent of the earlier Medical Board and, if he is found medically fit on the basis of the outcome of re-medical examination and also otherwise eligible for the post of Sub-Inspector, issue him offer of appointment within a period of four weeks from the date of receipt of a certified copy of this order. The applicant would also be entitled to all consequential benefits on notional basis from the date his immediate junior joined the post, however, on actual basis from the date he joins the post.
It is expressly made clear that this order shall not be construed as expression of any opinion on merits as well as on the medical reports and competence of the medical authorities, who have issued it, and the respondents shall pass appropriate orders on its own merits, in accordance with law.
With the above directions, the O.A. stands disposed of. There shall be no order as to costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/