Court No. - 6
Case :- WRIT - A No. - 697 of 2019 Petitioner :- Km. Nisha Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Chhaya Gupta,Sujeet Kumar Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard Ms. Chhaya Gupta, learned counsel for the petitioner and the learned Standing Counsel for the State respondents.
The petitioner had participated in a recruitment process initiated by the third respondent. In that exercise she was declared to be medically unfit by the Board constituted by the respondents. Aggrieved by that decision, the petitioner instituted Writ-A No. 15074 of 20181. Pursuant to an interim order passed in that petition on 21 August 2018, the petitioner was examined by a Board constituted in terms thereof. Upon the report of the Medical Board as constituted by this Court being received the petition was taken up for final disposal and on 4 September 2018, it was finally allowed in the following terms:
“Following orders have been passed in this case on 13.08.2018:-
"In similar facts and circumstances, directions have been issued today in Writ A No.14726 of 2018 (Sandeep Kumar Vs. State of U.P. and 3 others).
In the present case also petitioner has been declared medically unfit. A medical certificate of Combined District Hospital, District Kasganj duly signed by Dr. R.K. Dinkar has been produced, as per which, the petitioner is flat foot fit & genu valgus fit.
Submission is that the Medical Board was not right in declaring the petitioner to be medically unfit.
In such circumstance, it would be appropriate to provide that the petitioner shall appear 1 Km. Nisha Vs. State of U.P. And 3 Others along with a certified copy of this order before the Chief Medical Officer, Kasganj on 17.08.2018. The petitioner shall deposit a sum of Rs.5,000/- as cost with the Chief Medical Officer, Kashganj. The Chief Medical Officer would constitute a Medical Board consisting of three Orthopedic Surgeons of the level of Professor and associates Professors available at the local District Hospital. The C.M.O. shall also inform the S.S.P., Kashganj, who shall depute an official of the rank of Additional Superintendent of Police to remain present before the Board at District Hospital, Kasganj on 20.8.2018. The petitioner shall also produce materials in support of his identity before the Medical Board. The petitioner shall appear before the Chief Medical Officer, Kasganj on 20.8.2018 and he would be medically examination by the Board of three doctors on the question as to whether the petitioner is medically fit in terms of the Rules, 2015. The report signed by the Chairman of the Board would be sent through the Chief Medical Officer, Kashganj before this Court on or before 24.08.2018. This report would constitute the basis for the Court to determine as to whether the report of the Medical Board and the Appellate Medical Board is liable to be questioned or not?
List on 24.08.2018."
Pursuant to the orders passed on the previous occasions. Learned standing counsel obtain instructions from the Chief Medical Officer, Amroha. As per the report a Medical Board was constituted of a Professor and two doctors of the level of Assistant Professor on 01.09.2018.
As per the report, submitted by the Head of the Department of Optholmology of the Meerut Medical College, petitioner's vision is 6/6 in both the eyes and, therefore, petitioner is fit to be appointed as Constable.
In similar facts and circumstances, this Court had proceeded to pass following orders on 28.08.2018 in Writ A No. 14726 of 2018 (Sandeep Kumar Vs. State of U.P. and Others) :-
"Petitioner in the present case had applied for appointment to the post of Constable in U.P. Police and has scored 422.8 marks, on account of which he has been selected. The marks scored by the petitioner is much above the cut off. He has, however, been denied appointment on the ground that he has been declared medically unfit. The report of the medical board as well as appellate medical board was produced, as per which the petitioner was suffering from structural deficiency of bow legs and Hyperextension of B/L Elbow. Since report was doubted by the petitioner, who had relied upon other medical certificates to show infirmity in the opinion expressed by the medical board, this Court had directed the Chief Medical Officer concerned to constitute a medical board consisting of three Orthopaedic doctors of the level of Professor and Associate Professor. The three doctors have examined the petitioner and have found the petitioner to be absolutely fit and that, 'the petitioner is not suffering from any disability' has been observed by the medical board. Such report is by the doctors of the State after the petitioner has been examined in the presence of a senior Officer of the Police department itself, i.e., the Superintendent of Police (Traffic).
From the materials placed before this Court, this Court is satisfied that petitioner has not been examined correctly by the medical board and the action of the respondents in denying him appointment on the premise that petitioner is physically unfit cannot be sustained. This petition, therefore, succeeds and is allowed. A direction is issued to the 2nd respondent to conduct a fresh medical examination of the petitioner with regard to his fitness and to consider petitioner's case, accordingly, for appointment within a further period of six weeks, thereafter.
The writ petition is, accordingly, allowed."
In the present case also, petitioner has been declared medically fit by the Medical Board constituted pursuant to the order passed by this Court on the previous occasion.
Learned counsel for the respondents does not dispute the aforesaid fact.
From the materials placed before this Court, this Court is satisfied that petitioner has not been examined properly by the Medical Board and the action of the respondents in denying him appointment on the premise that petitioner is physically unfit cannot be sustained.
This petition, therefore, succeeds and is allowed with a cost of Rs. 10,000/- to be paid to the petitioner by the respondents for the harassment caused to him. It would be open for the State to get the responsibility of erring person determined & recover the cost from such person.
A direction is issued to the concerned authority to conduct a fresh medical examination of petitioner with regard to his fitness and to consider petitioner's case, accordingly, for appointment within a further period of six weeks, thereafter.
The copy of the medical report is being returned to the learned standing counsel. Its copy however, shall be supplied to the counsel for the petitioner by learned standing counsel.”
Taking advantage of the window which was left open in terms of that order granting liberty to the concerned authority to conduct a fresh medical examination, the respondents have proceeded to reject the candidature of the petitioner yet again.
Pursuant to the orders passed here, an Affidavit has been filed by the respondents appended whereto is the report of the Board constituted by the respondents in light of the liberty granted by the High Court in its order dated 4 September 2018. The six- member Board constituted by the respondents has ultimately found as under:
“On examination both eyes post lasik laser dear marks present on both cornea which shows the candidate has undergone laser vision Correction Surgery (Lasik laser). So her SURGICALLY CORRECTED vision is found 6/6 both Eyes. As it is CORRECTED Vision hence candidate is UNFIT.”
As is evident from the conclusions recorded by the Board, the vision of the petitioner has been found to be 6/6 in both eyes. The respondents further admitted that her vision having been surgically corrected and once found that the vision in both eyes is 6/6, the same meets the standards as stipulated by the respondents. It is relevant to note here that the fact that the petitioner's vision met the required standards was also mirrored in the report of the Board which was placed before the High Court in the earlier writ petition preferred by the petitioner. The respondents in that petition had not questioned the correctness of the report submitted by the Board. The only issue therefore which survives for consideration is as to whether the mere fact that the vision of the petitioner has been surgically corrected would disentitle her from consideration.
Learned Standing Counsel has been unable to sustain the opinion of unfitness as returned by the Board on the strength of any provision existing in the 2015 Rules . It is candidly admitted that a surgically corrected vision does not render a candidate unfit or ineligible to participate in the recruitment exercise. More fundamentally, the Court notes that the Board has proceeded to non-suit the petitioner by recording that since the vision of the petitioner has been surgically corrected, she is rendered unfit. This position as has been noted above, cannot sustain either on the basis of the provisions of the 2015 Rules or in logic itself. Once it is found that her vision is 6/6, she clearly meets the requirements as fixed. The respondents also do not rely upon any other material to establish that surgically corrected vision renders the petitioner unfit for consideration.
Consequently, this Court finds itself unable to sustain the view taken by the respondents. The writ petition is allowed . The candidature of the petitioner shall now be processed afresh and on the premise that she is medically fit insofar as her vision is concerned.
Order Date :- 28.2.2019 Arun K. Singh ( Yashwant Varma, J.)