Ankit, Appointment, (Group C) (Roll No. 2214016191) vs Staff Selection Commission Through Its Secretary, SSC (HQS), Block -12, CGO Complex, Lodhi Raod, New Delhi -110003 & Ors.

Manish Garg, Member (J)

The present Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-

“a) To issue an appropriate orders / directions for declaring the action of the respondents in not calling the applicant for Review Medical by independent medical board in view of supporting medical report of Govt. Hospital as illegal, arbitrary and unconstitutional.

(b) To issue appropriate orders / directions for holding Review Medical/Medical of the applicant for ascertaining his Medical Fitness for appointment to the post of Constable (Executive) Male in Delhi Police Examination, 2023 in UR category by independent medical board and accordingly set aside the impugned medical/review medical report dated 21.01.2024 (Annexure A-I) made basis to declare the applicant medically Unfit and further direct the respondents to consider and appoint the applicant to the aforesaid post as per his merit from the date of appointment of his Juniors and similarly placed persons with all consequential benefits including arrears of pay, seniority etc.

(c) To declare the action of respondents in declaring the applicant medically Unfit by ignoring their own rules as illegal and unjustified.

(d) To allow the O.A. with exemplary costs.

(e) Pass such other direction or directions order or orders as this Hon'ble Tribunal may deem fit and proper tomeet the ends of justice.

At the outset, learned counsel for the applicant relies upon the decision rendered by a co-ordinate Bench of the Tribunal in OA No.2107/2024 decided on 17.05.2024 and prays for similar order in the present matter. For the sake of brevity, the said order is reproduced as under:-

“The present Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-

“i) To set aside the medical report dated 21.1.2024 (copy never supplied, thus not annexed) and Review Medical examination report dated 24.1.2024

whereby the applicant was declared medically 'unfit' and to further direct the respondents that the applicant be subjected to a fresh medical examination in any recognized / reputed hospital of the government in NCR at the earliest and if found fit then to appoint the applicant to the post of Constable(Exe) Female in present selection process with all consequential benefits including seniority & promotion and pay & allowances.

And/or

ii) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant.”

At the outset, learned counsel for the applicant relies upon the decision rendered by a co-ordinate Bench of the Tribunal in OA No.670/2024 decided on 11.03.2024 and prays for similar order in the present matter. For the sake of brevity, the said order is reproduced as under:-

“At the outset, Shri R V Sinha, who has appeared on behalf of the SSC, states that in view of the Memorandum of Understanding (MoU) signed between SSC and Delhi police, the instant OA would be defended by the counsel representing Delhi Police. Accordingly,Learned counsel for Respondents No.2 & 3, Mr. Amit Yadav, shall represent Respondent No. 1, i.e., SSC as well.

Factual matrix, as explained by the learned counsel for the applicant, is that the applicant has participated in the recruitment process initiated by the SSC, for the post of Constable (Executive) Male and Female in Delhi Police Examination, 2023. After having been successfully cleared the said examination, name of the applicant appeared in the list of provisionally selected candidates. Thereafter he was called for medical examination which was conducted by the Medical Board, and reviewed by a subsequent Medical Board, wherein the applicant has been declared unfit for the medical condition as opined at page 19 annexure A1.

Aggrieved by the same, applicant has preferred the instant Original Application seeking the following relief(s) :-

“A. Call for records;

B. Quash and set aside the impugned order/report dated 31/01/2024;

C. Direct the Respondent No.1 to constitute an independent medical board to medically re-examine the Applicant;

D. Direct the Respondents to appoint the Applicants in the post of Constable (Exe.) with all consequential benefits including arrears etc;

E. Award cost of the proceedings; and

F. Pass any order/relief/direction(s) as this Hon’ble Tribunal may deem fit and proper in the interest of justice in favour of the Applicant.”

Learned counsel for the applicant submits that the applicant was declared unfit by the Medical as well as the Review Medical Board on the ground of “defective distant vision”. Thereafter the applicant has got herself examined by a Government Hospital, Bhagwan Mahavir Hospital, New Delhi, on 13.02.2024, whereby the Doctors at the said hospital have cleared her of the medical condition, opined by the medical board of the respondents. The report of the same is annexed at pages 55 & 56. The report by the said Government Hospital is contrary to the report of the Medical Board as well as the report of the Review Medical Board.

Learned counsel for the respondents vehemently opposes the OA and prays for two weeks’ time to file reply.

However, on instructions received from the respondents, he argues:

(i) That there is no provision of a further medical re-examination after the Medical and the Review Medical Board. He places reliance on point 14.2 of the advertisement, which reads as under:

“The Commission will not undertake detailed scrutiny of applications for the eligibility and other aspects at the time of Computer Based Examination and, therefore, candidature will be accepted only provisionally. The candidates are advised to go through the requirements of essential qualifications, age, physical and medical standards etc. and satisfy themselves that they are eligible for the post. Copies of supporting documents will be sought at the time of Document Verification. When scrutiny is undertaken, if any claim made in the application is not found substantiated, the candidature will be cancelled and the decision of the Commission/ Delhi Police shall be final.”

(ii) Intervention of the Tribunal would amount to an opinion on the judgment of the experts. The experts on the subject have already given a conclusive decision after examining the candidates and rightly rejected them.

(iii) Any intervention at this stage, would cause prejudice to the candidates who have not approached this Tribunal.

(iv) Since the respondents have followed the same in letter and spirit, the prayer sought for in the OA could not be extended to the applicant for conducting a re-medical examination after the Medical and Review Medical Board has examined the applicant. The same could not be claimed as a matter of right. The respondents, are not obligated to re-examine the applicant.

(v) The candidature of the applicant has rightly been rejected by the respondents. Placing reliance on the report of the doctors, he clarifies that those who are experts in the field have already conducted the medical examination, not once but twice and as the applicant has not been found fit, no appointment could be granted to her.

vi). Drawing strength from the judgment of the Hon’ble High Court of Delhi in Writ Petition No. 3830/2019, the learned counsel argues that while deciding the said Writ Petition, the Hon’ble High Court of Delhi has been guided by the judgment of the Hon’ble Apex Court in K M Priyanka Vs Union of India & Ors. 2020 SSC Delhi 1851. Para 8 of K M Priyanka (Supra) reads as under:

“8. We have on several occasions observed that the standard of physical fitness for the Armed Forces and the Police Forces is more stringent than for civilian employment. We have, in Priti Yadav Vs. Union of India 2020 SCC OnLine Del 951; Jonu Tiwari Vs. Union of India 2020 SCC OnLine Del 855; Nishant Kumar Vs. Union of India 2020 SCC OnLine Del 808 and Sharvan Kumar Rai Vs. Union of India 2020 SCC OnLine Del 924, held that 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. In fact, the case of Priti Yadav (supra) also related to 'cubital valgus'. It is also to be noted that the specialists that the petitioner had consulted had also found that the petitioner suffered from 'cubital valgus' and therefore, the findings by the Medical Boards were not wrong.”

vii). He states that consistently, the Courts have held that in absence of any provision for re-medical examination, and considering the nature of duties to be performed by the candidates in the Paramilitary Forces, Military Forces, Delhi Police and other disciplinary forces, the fitness of the candidates is to be examined at a higher degree and, therefore, the applicant could not be extended offer of appointment. He emphasizes that while pursuing an independent opinion from a Government Hospital, the candidates may or may not have informed the doctors conducting the medical examination that they are being considered for recruitment in a disciplined force. Delhi Police is a law enforcing agency and the job requires field duty, especially by the lower rung of the cadre, and the medical fitness cannot be compromised.

viii). It is a settled position of law that Judicial intervention could be invited only in two situations:

Wherever there is a violation of natural justice.

In any situation where one has been a judge to his own cause.

However, since in the present matter none of the two principles are applicable, no judicial intervention is called for.

ix) Learned counsel for the respondents draws further reference to WP (C) No. 4558/2020 before the Hon’ble High Court of Delhi in the case of Sharvan Kumar Rai vs Union of India & Ors which reads as under:

“6. Moreover, in the present case the private medical opinion taken by the petitioner on 14th June 2020 is also in consonance with the opinion of the Review Medical Board to the extent identifying pleural thickening with fibrotic lesions and hypoattenuation pattern in certain sections of the lungs of the petitioner.

The difference between the opinion of the Review Medical Board and of the Private practitioner consulted by the petitioner only is as to the lung capacity of the practitioner and in which respect, as aforesaid, the opinion of the respondents CRPF with whom the petitioner is to serve, is to be respected.

We have in judgment dated 22nd May 2020 in W.P. (C) No. 3237/2020 titled Dhiraj Milind Dhurve vs. UPSC, in the context of medical examination test in Central Armed Police Forces (CAPFs) and which includes respondents CRPF, held, that the candidates found medically unfit cannot seek a change of the terms subject to which they have taken the examination and which terms uniformly apply to all candidates. It was held that the principle of 'Rules of the Game cannot be changed after the game has begun' applies, with only a few of all those found medically unfit, who approach the court, being permitted another round of medical test.

We have also considered whether the present is a case of inconsistency between the report of the Medical Board and Review Medical Board. Though the petitioner himself has not pleaded that he was not suffering from a chest infection at the time of being examined by the Medical Board on 21st December, 2019, it is significant that there is a gap of more than four months between the Medical Examination and the Review Medical Examination and during which time an acute infection can be cured with medication. As per the Rules of the respondents CRPF, for applying for Review Medical Examination, the petitioner, along with the application for review, was required to file the Medical Certificate from a specialist medical practitioner of concerned field, as per the proforma prescribed. The petitioner has not produced before us, the Medical Certificate which must have been obtained before preferring the review petition. Therefrom also, adverse inference has to be drawn against the petitioner. The opinion of the private diagnostic centre approached as late as on 14th June, 2020 also confirms what has been found by the Review Medical Board, that is, 'pleural thickening with fibrotic lesions with hypoattenuation pattern of the lungs'.

We also do not agree that the certificate of medical unfitness of the petitioner is not in consonance with the guidelines supra. It is evident from Clause XV of the Guidelines reproduced hereinabove that exercise induced bronchospasm and substantiated history of cough, wheeze etc. is a reason for rejection. Even qua tuberculosis, only those cases of treated tuberculosis are to be accepted as fit, where there is normal pulmonary function. It thus cannot be said that the medical unfitness found of the petitioner is not in consonance with the guidelines. ”

x) Once the medical has been conducted by the respondents and the same has been reviewed by a Board consisting of three doctors, the same cannot be interfered with, particularly in the absence of any malafide or bias alleged by the applicant against the board/ respondents while conducting these medical tests.

In rejoinder, learned counsel for the applicant draws strength from the judgment of the Hon’ble High Court of Delhi in WP (C ) 3387 of 2023 decided on 20.03.2023. She states that while deciding similar issue, where there was an opinion of Medical Board as well as the Review Medical Board, the applicant got himself examined subsequently by a Government hospital and approached the respondents seeking re-medical examination. The Hon’ble High Court has allowed a Writ Petition stating that once there was an opinion of a Government Hospital after the Review Medical Board, the candidature of the applicant could be re-examined. She draws strength from the judgment referred to by the respondents Sharvan Kumar Rai vs Union of India & Ors. (supra) in Writ Petition No. 4558/2020 which was decided on 27.07.2020. She submits that the applicant therein was suffering from pneumonia and between the four months’ period of medical by the Review Medical Board this condition was reversed. However, the applicant could not produce the certificate supporting her case and, therefore, the Hon’ble High Court did not interfere in the Writ Petition. While in the instant case, the Medical Board as well as the Review Medical Board has been conducted within a period of less than 4 days and, therefore, there was no situation where a medical condition could be reversed.

Heard both the learned counsel for the parties at length. With the consent of the parties, the OA is decided at the admission stage itself.

It is not in dispute that the applicant had participated in the Constable (Executive) Male and Female in Delhi Police Examination – 2023 conducted by SSC. The applicant has obtained merit and his name is in the list of provisionally selected candidates. Medical was conducted on 20.01.2024 and the applicant was declared unfit for the reasons explained in the medical certificate annexed at page no. 19. Thereafter, a review medical examination was conducted on 23.01.2024 and the opinion of the Medical Board was maintained. The applicant has got herself examined from the reputed Govt. Hospital. The report of the same is annexed as Annexure-A/7. Clearly the reports of the medical examination by the respondents at the Govt. Hospitals are within a period of less than a month. Obviously, either of the two is incorrect. The applicant has reached up to the provisional select list by obtaining her merit. We are conscious of the fact that we are not the experts and, therefore, cannot review or sit over an appeal of the medical boards or the opinion of the Govt. Hospital, particularly, in the light of the fact that review board as well as the review medical board has been conducted at the same hospital and, probably, by the same set of Doctors and within a period of less than seven days. Therefore, the very purpose of convening or conducting the review medical examination has been defeated and has become a futile exercise. Moreover, in similar circumstances, a Coordinate Bench of this Tribunal has decided the OA 1889/2023 on 17.07.2023 wherein one of us (Hon’ble Mrs. Pratima Gupta, Member (J)) has been a Member. The judicial discipline binds us to take a similar view. The relevant excerpt of the same is reproduced herein below:

“The applicant was an aspirant for the post of Sub Inspector in Delhi Police and participated in the selection examination conducted by the Staff Selection Commission (SSC). The issue confrontingthe applicant, as explained by his learned counsel, is that despite the applicant clearing the various competitive stages of selection successfully, he has been denied appointment on the ground that the medical examination has declared him unfit.

xxx       xxx      xxx      xxx

Vide the reports of the review medical examination placed at Annexure A-1 and A-2, it has been recorded that the initial medical examination of the applicant found him unfit due to high Blood Pressure. Subsequently its finding has been reinforced in the review medical examination and further clarification has been added as “Stage-I Hypertension”.

Learned counsel submits that both the initial medical examination as also the review medical examination have been conducted in the same hospital by probably the same set of doctors, the concerned hospital being the BSF Hospital, R.K. Puram, New Delhi. What he seeks is that the review should be conducted by a medical board independent of the BSF Hospital which conducted the initial examination.

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.”

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 Hospital which has already conducted the initial and the review medical examination.

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.

The directions contained herein shall be complied with within a period of six 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, she shall be given appointment forthwith. The applicant, in such an eventuality, shall also be entitled to grant of all consequential benefits, however, strictly on notional basis.

We make it clear that besides the limited directions given above, we have neither examined nor commented upon the merits of the claim of the applicant as set forth in this OA. Further, nothing in this order is to be construed as an opinion upon the medical reports or upon the competence of the doctors who have issued it. We record that we are not entitled to comment upon their professional competence.

There shall be no order as to cost.”

Learned counsel for the respondents is present. He opposes the grant of reliefs relying upon the averments made in the counter affidavit and objections raised in the aforequoted OA.

We have given a careful reading to the Order in OA No. 670/2024. There being no doubt in our minds that the two OAs bears strikingly similarities with each other, there is no cause before us to take a view which would be at divergence from the order quoted verbatim above.

Accordingly, the present OA is disposed of, at the admission stage itself, 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 Hospital which has already conducted the initial and the review medical examination.

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.

The directions contained herein shall be complied with within a period of six 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, she shall be given appointment forthwith. The applicant, in such an eventuality, shall also be entitled to grant of all consequential benefits, however, strictly on notional basis.

We make it clear that besides the limited directions given above, we have neither examined nor commented upon the merits of the claim of the applicant as set forth in this OA. Further, nothing in this order is to be construed as an opinion upon the medical reports or upon the competence of the doctors who have issued it. We record that we are not entitled to comment upon their professional competence.

With the above directions, the OA stands disposed of.

No order as to costs.”

Learned counsel for the respondents is present. He opposes the grant of reliefs relying upon the averments made in the counter affidavit and objections raised in the aforequoted OA.

We have given a careful reading to the Order in OA No. 2107/2024. There being no doubt in our minds that the two OAs bears strikingly similarities with each other, there is no cause before us to take a view which would be at divergence from the order quoted verbatim above.

Accordingly, the present OA is disposed of, at the admission stage itself, 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 Hospital which has already conducted the initial and the review medical examination.

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.

The directions contained herein shall be complied with within a period of six 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, she shall be given appointment forthwith. The applicant, in such an eventuality, shall also be entitled to grant of all consequential benefits, however, strictly on notional basis.

We make it clear that besides the limited directions given above, we have neither examined nor commented upon the merits of the claim of the applicant as set forth in this OA. Further, nothing in this order is to be construed as an opinion upon the medical reports or upon the competence of the doctors who have issued it. We record that we are not entitled to comment upon their professional competence.

With the above directions, the OA stands disposed of.

No order as to costs.