Court No. - 16
Case :- WRIT - A No. - 7609 of 2018 Petitioner :- Rahul Singh Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Siddharth Khare Counsel for Respondent :- A.S.G.I.,Pramod Kumar Pandey
Hon'ble Ashwani Kumar Mishra,J.
Following orders were passed in the matter on 12.3.2018:-
"Petitioner was selected for appointment to the post of Navik, pursuant to an advertisement issued in August,2017. He has been found to be medically unfit by the Board due to his suffering from Hyperdrosis. Learned counsel for the petitioner states that the report of the Medical Board is not correct inasmuch as petitioner does not suffer from any such ailment. A medical certificate issued by the Chief Medical Officer, Agra dated 17.2.2018 is relied upon in order to contend that such report is not correct.
Learned counsel places reliance upon a Division Bench judgment of Delhi High Court passed in Writ Petition (C) No. 2917 of 2017 (Satish Vs. Union of India and others),which incidentally arose out of similar selection for the post of Navik. It is prayed that a review board be directed to conduct fresh medical test.
Learned Standing Counsel representing the respondent Coast Guard authority may obtain instructions in the matter with in 10 days.
Post as fresh, once again, on 22.3.2018".
On the last occasion, learned counsel for the respondent had placed reliance upon a decision of this Court in Writ Petition No. 48119 of 2016, which had been dismissed in similar circumstances, relying upon a Division Bench judgment of this Court in Special Appeal (Def.) No. 540 of 2015. The order passed in Special Appeal ( Def.) No. 540 of 2015 (Arjun Singh Vs. State of U.P. and others) is relevant, and reads as Under:-
"The appellant, while moving the learned Single Judge in a writ petition under Article 226 of the Constitution, did not disclose that, as a matter of fact, a 're-medical test' had also been carried out. Having due regard to the fact that the recruitment is to the police force, the ground for rejection cannot be regarded as being extraneous to the nature of the employment or the norms of fitness required. The learned Single Judge has correctly held that it would not be open for the Court to substitute its own opinion for the opinion of the medical authorities or to hold that the requirement need not be fulfilled. The Court can only interfere where there has been a violation of a legal provision or the decision has been arbitrarily taken.
Learned counsel appearing on behalf of the appellant has sought to place reliance upon a medical report dated 16 April 2015 of Dr. Shyama Prasad Mukherjee Civil Hospital, Lucknow. The medical report only states that no orthopedic problem is seen and that the appellant has normal arch of both feet. This, in our opinion, cannot override the process which is prescribed by the competent authority for deciding medical fitness.
We see no reason to interfere with the impugned judgment and order of the learned Single Judge. The special appeal is dismissed.
There shall be no order as to costs"
The Division Bench judgment in Special Appeal (Def.) No. 540 of 2015 will not be of help to the respondent's cause inasmuch as a re-medical test had already been conducted there, which is not the case here. The action of the respondent is otherwise alleged to be arbitrary inasmuch as opinion of District Hospital, Agra has been brought on record, according to which petitioner is not suffering from Hyperhydrosis.
Learned counsel for the respondent does not dispute that in similar circumstances, a Division Bench of Delhi High Court has issued a direction for holding of review medical test. This order has been complied with by the respondent. Since there is no provision for the review medical test and the possibility of error, in the opinion formed by the concerned medical board, cannot be ruled out, particularly as a contrary opinion is on record, it would be in the ends of justice to direct the respondent to subject the petitioner to a fresh medical test.
In the facts and circumstances, noticed above,this petition stands disposed of with a direction that the petitioner shall appear before the respondent no. 4, who shall refer the petitioner to the Army Hospital ( Research Referrer), New Delhi. Petitioner shall be medically re-examined at the army hospital, and based upon the report of the hospital concerned, the respondent no.2 shall take a fresh decision in the matter relating to recruitment of petitioner.
Order Date :- 29.3.2018 n.u.