Court No. - 58
Case :- WRIT - A No. - 26096 of 2018 Petitioner :- Dr. Dhirendra Tiwari Respondent :- Union Of India And 4 Ohters Counsel for Petitioner :- Mayank,Mritunjay Mohan Sahai Counsel for Respondent :- A.S.G.I.,Ajeet Kumar Singh
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order dated 28th April, 2019, passed by respondent no. 4 - Assistant Registrar (Administration) Banaras Hindu University, Varanasi, whereby petitioner's representation for treating his joining in the Institution w.e.f. 23rd February, 2012, instead of 17th May, 2013, has been rejected. A prayer is made to command the respondents to treat the petitioner in continuous service w.e.f. 23rd February, 2012.
It appears that petitioner applied for appointment to the post of Assistant Director, pursuant to Advertisement No. 2 of 2009-10 published by the Banaras Hindu University, Varanasi. It is asserted in Paragraph 6 of the writ petition that petitioner has worked as Lecturer in Physical Education in Dayanand College, Azmer from 10.01.1997 to 30.08.2003 and thereafter as Senior Lecturer from 10.01.2003 to 30.08.2005. From 31.08.2005 to 30.09.2011 petitioner claims to have worked as Assistant Professor in Physical Education at Banasthali Vidyapith. A certificate of working is said to have been issued by the Department of Physical Education at Banasthali Vidyapith from 1.10.2011 to 22.2.2012 It is asserted that pursuant to the application made for appointment against Advertisement No. 2 of 2009-10, the petitioner was allowed to participate and he was ultimately selected. A letter of appointment was issued to petitioner on 15.11.2011. The wife of the petitioner made an application to the Deputy Registrar (Recruitment & Assessment Cell) B.H.U. for grant of three months further time to the petitioner to join, as the petitioner has met with an accident at Kurukshetra while on duty on 18.11.2011. This request apparently was accepted. Petitioner consequently obtained a fitness report from Fortis Escorts Hospital, Jaipur. He had been operated upon prior to his joining. This request was accepted by the University on 23rd February, 2012. The joining report in that regard is brought on record of the writ petition as Annexure 6.
It seems that one of other applicants, who had also applied against the same advertisement, made a complaint before the Vice Chancellor that petitioner's joining had been allowed without following the procedure prescribed, inasmuch as, the medical examination of a candidate's fitness had to be done by the Board specifically authorized for the purpose. Taking cognizance of this complaint, the University proceeded to pass an order on 29th February, 2012, keeping the petitioner's joining in abeyance. Petitioner was then subjected to medical examination by the board of doctors at Sir Sunder Lal Hospital on 1.3.2012 consisting of seven persons. Physical Examination Report has taken note of the petitioner's condition at that stage and it was found that extent of injury caused to the petitioner was such that some more time would be required for his shoulder to function properly. The Committee resolved that since injuries are only three months old, and are in the recovery phase, the candidate should be reevaluated after three months so as to be able to ascertain the extent of permanent disability. Based upon this report of the Medical Board, an order was passed by the Vice Chancellor holding that petitioner's joining has not been accepted. The orders in that regard were put to challenge before this Court in Writ Petition No. 16443 of 2012. The Division Bench of this Court examined the claim of the petitioner at length and it was found that the evaluation of petitioner's physical condition by the Board did not suffer from any irregularity. Paragraphs 14 to 18 of the judgment in the aforesaid writ petition, dated 11th January, 2013 are reproduced hereinafter:-
"14. Selection and appointment of the petitioner as Assistant Director, Physical Education (Basket Ball) in the University Sports Board is not disputed. It is also not disputed that the petitioner met with an accident in which he sustained serious injuries and pursuant to a request made by his wife, his joining was deferred upto 16.03.2012. Although the petitioner was initially permitted to join on the basis of medical certificates including that of the Chief Medical Officer of the University, as respondent no. 6 brought to the notice of the Vice Chancellor on 23.02.2012 that petitioner is not physically fit to discharge the arduous duties attached to the post of Assistant Director, University Sports Board (Basket Ball), that a Medical Board was constituted which examined the petitioner on 01.03.2012, which did not find him medically fit, but considering the nature of injuries directed for fresh medical examination after six months. Admittedly, the petitioner did not subject himself to fresh medical examination before the Board of the University and on the contrary resisted the same on the ground of certificates issued by Sports Injury Centre, Orthoscopy & Joint Disorder, New Delhi (Annexure S.A-1).
15. It cannot be gainsaid that this Court neither has the competence nor the expertise to dispute the correctness of a report submitted by medical experts. Pleadings of petitioner do not inspire the confidence of the Court so as to direct the University to conduct the medical examination outside the University, as this Court is of the view that doing so would seriously erode the credibility of the medical experts of the University. Be that as it may, the satisfaction as regards the medical fitness of the petitioner, has to be of the employer i.e. the University. It has come on record that the father of respondent no. 6 was a Senior Assistant in the University. On these facts, no bias could be inferred against the University. Despite notice, the petitioner neither appeared before the Medical Board and on the contrary, expressed his inability to do so.
16. The impugned order does not suffer from any error of law.
17. However, considering the facts and circumstances of the case, we relegate the petitioner to approach the learned Vice Chancellor who may if he so consider appropriate co-opt such other medical specialist as he may deem fit for examining the petitioner afresh. This be neither read as undermining and eroding the competence and calibre of the medical experts nor as a judicial fiat.
18. Subject to the aforesaid observation, the writ petition is dismissed. No order as to costs."
It transpires that based upon the observations made by this Court, permitting afresh consideration of petitioner's physical condition, a Medical Board was again constituted on 4th March, 2013, which found the petitioner to be physically fit. Based upon such report, the petitioner was ultimately allowed joining on 17th May, 2013. Having joined petitioner represented before the authority for granting the benefit of joining from 23rd February, 2012, on the ground that the subsequent opinion of the Medical Board, actually belies the previous report, inasmuch as, the petitioner's fitness has been verified by the Board constituted by the University itself. Such plea of the petitioner, however, has been declined by the order impugned dated 28th April, 2018. This order records that petitioner since has been allowed joining only on 17th May, 2013 and that the previous joining was not in accordance with the procedure prescribed, as such, the benefit claimed from 23rd February, 2012, cannot be extended.
Learned counsel for the petitioner submits that petitioner would be put to grave hardship in case benefit of joining is not allowed to him from 23rd February, 2012, inasmuch as, the benefit of his past services would be denied to him as this period would be treated as break in service. It is also submitted that once the Medical Board constituted by the University, has found the petitioner to be fit on 4th March, 2013, it would relate back to the initial joining of the petitioner on 23rd February, 2012 itself.
Counter affidavit has been filed on behalf of the University.
Sri V.K. Upadhyay, learned Senior Counsel assisted by Sri Ajeet Kumar Singh submits that the initial joining of the petitioner was not in accordance with the procedure prescribed, inasmuch as, the fitness of a candidate is required to be examined in the manner prescribed and unless that is done there would be no valid joining in the eyes of law. He submits that the decision of Vice Chancellor not to accept petitioner's joining from 23rd February, 2012 has attained finality with the dismissal of the petitioner's earlier writ petition and that aspect is not open to challenge. So far as the petitioner's plea with regard to counting of his previous services is concerned, it is pointed out that such aspect is wholly beyond the scope of the writ petition, inasmuch as, neither petitioner has applied for inclusion of his past services nor this aspect of the matter has been dealt with so far. It is also submitted that in case such a claim is raised, the same shall be dealt with as per law.
Having heard learned counsel for the parties and upon perusal of materials placed on record, this Court finds that the specific decision taken by the Vice Chancellor not to accept petitioner's joining w.e.f. 23rd February 2012 has attained finality. The order of the Vice Chancellor, dated 26th March, 2012, was put to specific challenge in the writ petition but the writ petition was dismissed. The natural consequence of such dismissal would be that the order of Vice Chancellor, dated 26th March, 2012, has become final. The benefit of joining, therefore, cannot be granted to the petitioner from 23rd February, 2012. It is otherwise on record that the Medical Team, which had inspected the petitioner on 1st March, 2012, found him to be temporarily unfit at this stage, and had clearly observed that petitioner's medical condition would require reevaluation after three months of such examination. As a matter of fact, a fresh examination has been done wherein the petitioner has been found medically fit. It is thereafter that he has been allowed joining. It is otherwise not in issue that the competent authority who had to assess petitioner's medical condition for the purposes of fitness had not initially evaluated the petitioner and that the report which had been relied upon was otherwise not acceptable in terms of the procedure prescribed by the University. Such aspects otherwise have attained finality with dismissal of the earlier writ petition. The decision of the University, therefore, not to grant benefit of joining from a previous date i.e. 23rd February, 2012, therefore, would not warrant any interference.
Having said so, this Court is of the opinion that claim of the petitioner for counting of his past services would be required to be dealt with by the University, in accordance with law, once a specific prayer in that regard is made by the petitioner. Such consideration would not be adversely affected by the order impugned in the present writ petition or the fact that no interference is being made in the present writ petition, inasmuch as, the factum of joining as well as the considerations for grant of continuity in service are entirely distinct. It goes without saying that in case petitioner makes an application for counting of his past services, the same shall be dealt with in accordance with applicable office memorandum and in accordance with law.
Subject to the observations aforesaid, this petition is consigned to records.
Order Date :- 26.2.2019 Ranjeet Sahu