Union of India and others vs Rajendra Singh Kushwah

Justice Sheel Nagu

I.A. No. 490/2011 is an application seeking condo nation of delay of 26 days. Though the reasons assigned by the State for condo nation of delay are not very convincing but considering the fact that the matter deserves to be heard on merits, this Court is inclined to condone the delay in preferring this appeal. Accordingly I.A. No. 490/2011 is allowed and disposed of. Delay in preferring this writ appeal stands condoned.

This writ appeal u/s 2(1) of the Madhya Pradesh Uchcha Nayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005, assails the order dated 11/11/2010 passed in W.P. No. 5552/2008 (S), whereby while disposing of the said writ petition the learned Single Judge has directed the petitioner to be examined by two Specialists of Opthalmology at Rajendra Prasad Institute of Opthalmology, New Delhi, with a further direction that in case on such examination, it is found that the petitioner''s defect regarding Congenital Ptosis of left eye is corrected completely and the report is in favor of the petitioner, then he be treated as medically fit for appointment to the post of Assistant Commandant in Central Reserve Police Force (CRPF for brevity).

The sole and primary ground of challenge raised in this writ appeal by the appellants/ employer is that when the matter of medical examination of a candidate during recruitment process is exclusively governed by the Statutory Rules/ executive instructions framed for the purpose, the exercise of powers of judicial review in the matter of physical fitness or unfitness of the candidate concerned, cannot travel beyond the permissible limits prescribed by the statute or rules/ executive instructions framed therein. In this back ground the appellants/ employer contends that the learned Single Judge by directing re-examination of petitioner by a foreign medical agency de-horse the rules/ instructions to ascertain whether the physical disability pointed out by the departmental medical agency, is cured or not, is unwarranted and untenable in law.

Learned counsel for appellants has brought to the notice of this Court that the petitioner/ respondent in compliance of the order of learned Single Judge, was examined by the Opthalmology Department of Rajendra Prasad Institute of Opthalmology, New Delhi, (AIMS) and by letter dated 06/12/2010 it was opined that petitioner''s defect regarding Congenital Ptosis of left eye seems to have been corrected.

Reverting back to the facts and grounds of the case, it is pertinent to point out that by notification dated 05/05/2007 issued by the Ministry of Home Affairs Government of India, Rules for competitive examination to be held by UPSC in 2007 for filling up vacancies in the cadre of Assistant Commandant in various armed forces of the Union including CRPF, were issued inter alia providing for physical standard. The provisions to ascertain physical standard and providing remedy of appeal to candidates found unfit in the medical examination are extracted below:

(4) Medical Standards Tests, to check the standards specified in Appendix-II, will be conducted only in respect of candidates who are declared qualified in the Physical Efficiency Tests.

(5) The Physical Standards /Physical Efficiency Tests and Medical Standards Tests will be conducted under the Supervision of a Nodal Authority to be appointed by the Ministry of Home Affairs. These tests will be conducted at various centers to be notified after the results of the written examination.

(6) Appeals will be entertained only against the Medical Standards Tests and will have to be made to the Appellate Authority designated by the Ministry of Home Affairs within a period of 15 days from the date of declaration of the result of these tests.

(7) Candidates who are declared qualified in the Medical Standards Tests, will be called for the interview/ Personality Test to be conducted by the Union Public Service Commission. Candidates, who are declared temporarily medically unfit and those who are declared medically unfit but allowed to appear before the "Review Medical Board" on their appeal by the Appellate Authority will be called for interview/ Personality Tests provisionally. The interview/ Personality Test will carry 200 marks.

Bare perusal of the above said provision makes it clear that a person which does not come up to the physical standard prescribed by the recruitment rules is entitled to an appeal to the Appellate Authority as designated by the Ministry of Home Affairs.

In the case at hand the petitioner after being found unfit on account of partial Congenital Ptosis of left eye was further found to be unfit for employment as Assistant Commandant in CRPF by the Review Medical Board which is the prescribed appellate authority. After review medical Board there is no further remedy provided to a medically unfit candidate.

In Annexure R/2 along with return to the petition filed by the respondents in W.P./ appellants herein, in the first medical test, the petitioner was found temporarily unfit due to Congenital Ptosis of left eye as per declaration dated 02/06/2008 but in the re-medical examination as per the report dated 16/09/2008, the petitioner was again found temporary unfit due to the same defect. Thereafter, petitioner underwent surgery for correction of the said defect and was again subjected to review medical examination which again as per report dated 15/11/2008 found him unfit on the ground that the operation has not fully corrected the defect of Congenital Ptosis of left eye. Thereafter the petitioner filed W.P. No. 5552/2008(S) in which the impugned order came to be passed.

Considering the fact that the procedure laid down for recruitment for filling up vacancies of Assistant Commandant, CRPF does not provide for any further medical test and also that the petitioner has neither challenged the bona fides of the first medical test, nor of the re-medical examination nor of the review medical examination, this Court is of the considered view that the learned Single Judge could not have travelled beyond the limits prescribed by the recruitment rules for medical examination/ re-examination.

It is well settled principle of service jurisprudence that in the matters of recruitment where physical test of a candidate is an essential prerequisite, the court while exercising its power of judicial review under Article 226 of Constitution of India cannot step into the shoes of the recruiting agency by directing a further unprescribed medical test for the obvious reasons that the court is neither equipped with any qualification in the field of medicine nor has any experience in that regard. Therefore, it is appropriate for a writ court to leave the technical aspects involved in the process of recruitment, to the prescribed agency which is qualified and experienced in the field.

It appears that the learned Single Judge was persuaded more by sympathy than by law in passing the impugned order.

Be that as it may, the counsel for appellants has brought to the notice of this court the latest opinion of Opthalmology Department of Rajendra Prasad Institute of Opthalmology, (AIMS), New Delhi, from perusal of which it appears that the defect of Congenital Ptosis in the left eye seems to have been corrected.

The opinion expressed by Opthalmology Department of Rajendra Prasad Institute of Opthalmology, (AIMS), New Delhi is an opinion which cannot be ignored. Yet the question remains as to whether the curing of the defect is adequate or not?. The answer to this question cannot and should not be given by this Court. It has to be left for the recruiting agency/ employer to be decided, and to that extent the jurisdiction of the employer/ recruiting agency cannot be taken away. Thus this court restrains itself from rendering any findings as regards the opinion expressed by Opthalmology Department of Rajendra Prasad Institute of Opthalmology, (AIMS), New Delhi.

Accordingly, this Court in the facutal and legal background discussed supra is compelled to differ with the view taken by learned Single Judge in the impugned order.

Accordingly, the impugned order of learned Single Judge dated 11/11/2010 passed in W.P. No. 5552/2008 (S) is set-aside and this writ appeal is allowed with the following directions:

The petitioner will be re-examined by appellate authority as designated by the Ministry of Home Affairs within a period of two months from the date of communication of this order to the said authority.

While re-examining the petitioner as regards his physical suitability to be appointed as an Assistant Commandant in CRPF, the opinion expressed by Opthalmology Department of Rajendra Prasad Institute of Opthalmology, (AIMS), New Delhi dated 06/12/2010 will be taken into account.

The authority concerned while re-examining the petitioner will not be prejudiced by the earlier medical reports dated 02/06/2008, 16/09/2008 & 15/11/2008.

In case the petitioner is found physically suitable for the post of Assistant Commandant, CRPF, he be given all the consequential benefits on notional basis from 15/11/2008 (the date when petitioner as found unfit by Review Medical Board after undergoing the orrective surgery) without entitlement to arrears of salary. Certified copy as per rules.