Nitesh Kumar vs Union Of India And Ors

The petitioner has approached this Court under Article 226 of the Constitution of India with the following prayers:

“(i) The rejection of candidature of petitioner dated 16.08.2019 (Annexure-5) may kindly be declare illegal, arbitrary and same may kindly be

quashed and set aside.

(ii) Respondents may kindly be directed to get the re-examination of the measurement of chest of the petitioner through a Medical Board and if the

petitioner found qualified, then enroll him as constable (General duty) in Center Reserve Police Forces (CAPFs) according to his merit position.

(iii) Any other appropriate writ,order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner.

(iv) Cost of the writ petition may also be allowed to the petitioner.â€​

The facts appertain to the present petition are that the respondents issued an advertisement for recruitment of Constables (GD) in Central Armed

Police Forces (CAPFs), NIA & SSF and Rifleman (GD) in Assam Rifles (AR).

The petitioner desirous of securing such appointment and having requisite eligibility and qualification, applied for such post.

The petitioner appeared in the written examination and was declared successful; whereafter, he was called for physical standard test (PST) and

physical efficiency test (PET), which were held on 16.8.2019.

The petitioner successfully cleared PET, however, his candidature was rejected as according to the respondent no.3, the petitioner’s chest

measurement was 92-95 cms, and hence, he did not conform to physical standard test norms.

The petitioner, thereafter, submitted a representation on 21.8.2019 and pointed out that his chest measurement has not been done properly.

Petitioner requested that his PST be conducted afresh.

Since, the petitioner’s request was not paid any heed, he approached this Court, while invoking its extra ordinary jurisdiction, with an assertion

that the petitioner’s correct chest measurement is 92-98, while placing a certificate dated 1.11.2018 issued by the Medical Officer, Primary Health

Centre 17Z, Sri Ganganagar.

Giving credence to petitioner’s assertion, on 27.1.2019, this Court passed the following order:

“Inviting Court’s attention towards the report of PST, conducted by the respondents qua petitioner, it has been pointedout that the same shows

petitioner’s chest measurement as 92-95cms., for which the petitioner raised an objection and contended that measurement of his chest has not

been properly taken and after expansion, his chest meets the requisite norms, however, no heed was paid to the petitioner’s request, wehreafter

he got himself examined by a gazetted medical officer, who has given a report showing his chest measurement as 92-98 cms.

Hence, issue notice. Issue notice of stay application also, returnable on 03.01.2020.

In view of the document submitted by the petitioner showing chest measurement as 92-98 cms., the respondent No.3is directed to constitute a medical

board within seven days from the date of receipt of the order instant for measurement of petitioner’s chest, on petitioner depositing a sum of

Rs.5,000/-with the respondents and intimation to this effect, shall also be given to the petitioner on his mobile No. +91-8739937660.

In case, it is found that submissions made by the petitioner in the petition are correct, the said amount would be refunded back to the petitioner.

Needful may be done by the respondents and the report of the medical board be produced in sealed cover before the Court on the next date.

List this case on 03.01.2020. “

On 4.1.2020, the respondents came with the report pursuant to direction issued by this Court on 27.11.2019 and reiterated the same measurement

and submitted that petitioner’s chest measurement are 92 (unexpanded) and 95 (expanded).

The petitioner filed an additional affidavit on 2.1.2020 indicating therein that during the course of re-examination pursuant to the directions issued

by this Court, petitioner was inappropriately treated and the physical standard test carried out by the respondents was biased. Alongwith the aforesaid

affidavit, the petitioner enclosed yet another certificate dated 31.12.2019, issued by the Medical Officer, MDM Hospital, Dr.SN Medical College,

Jodhpur reflecting petitioner’s chest measurement as under:

Unexpanded   92 cm

Expanded       100 cm

Such being the position, this Court called Dr. Anand Purohit, Medical Officer, attached with this Court and requested him to conduct

petitioner’s chest measurement in the presence of respondents and rival counsel in the Court premises itself. During such examination, Dr. Purohit

submitted his report indicating therein that petitioner’s chest measurement are as under:

“(1) Below Nipple with expansion of chest :

Un-expanded  88.5 cm

expanded        94 cm

(2) On the basis of Nipple of chest :

Un-expanded  96 cm

expanded        102 cmâ€​

This Court deems it appropriate to reproduce the order dated 4.1.2020 in its entirety:

“Pursuant to the directions given by the Court on 27.11.2019, the measurement of the petitioner’s chest has has been done by the respondents

and the report dated 31.12.2019 has been placed by Mr. Sanjeet Purohit, learned Additional Solicitor General, according to which measurement of

petitioner’s chest is as under:

Un-expanded  92 cm

Expanded       95 cm

An additional affidavit dated 2.1.2020 has been filed by the petitioner and it has been asserted that despite direction of this Court, his measurement

was done with great reluctance. It is alleged that not only the petitioner was ill treated, even petitioner has filed a medical certificate given by the

Medical Officer, MDM Hospital, Jodhpur alongwith the additional affidavit, according to which, the petitioner’s chest measurement is as under:

Un-expanded  92 cm

Expanded       100 cm

Mr. Budania, learned counsel for the petitioner asserts that the respondents have vindictively carried out petitioner’s examination and have

intentionally given an incorrect report showing petitioner’s chest measurement as 92 â€" 95 cm respectively.

Such being the situation, this Court summoned Dr. Anand Purohit, Medical Officer attached with this Court to carry out petitioner’s chest

measurement.

The same was done in the Court premises itself, in the presence of counsel for the parties as well as Mr. Neeraj Kumar, Assistant Commandant

(Law), BSF.

According to the report furnished by Dr. Purohit, which has been taken on record, the petitioner’s chest measurement is as under:

(1) Below Nipple with expansion of chest :

 Un-expanded             88.5 cm

 expanded                   94 cm

(2) On the basis of Nipple of chest :

 Un-expanded             96 cm

 expanded                   102 cm

This Court feels that the respondents firstly rejected petitioner’s candidature irregularly and have thereafter vindictively prepared the report dated

31.12.2019.

List this case on 13.1.2020; on which date, the respondents may explain their position as to how the petitioner’s chest measurement was shown as

92- 95 in both the reports given by them, whereas three reports on record indicate otherwise.â€​

Although the matter was thus adjourned to 13.1.2020, requiring the respondents to explain their position about the discrepancy in petitioner’s

chest measurement in both the reports furnished by them.

It is to be noted that no response has been filed, however, a reply to the writ petition has been filed by the respondents, in which, nothing has been

said regarding discrepancy in the measurement.

It is noteworthy that no objection to the report furnished by Dr. Purohit or the report issued by the Medical Officer, MDM Hospital, Jodhpur has

been filed, which shows that the respondents have accepted said report, more particularly, the one prepared by Dr. Anand Purohit in the Court

premise.

Be that as it may, Mr. Budaniya, learned counsel for the petitioner submitted that he does not intend to join issue on the vindictive and arbitrary

attitude of the respondents. He submitted that petitioner would be satisfied, if appropriate direction is issued to the respondents to treat the petitioner

eligible in PST and permit him to take part in the process of recruitment.

Hence, the writ petition is allowed. The petitioner is declared successful in physical standard test.

Respondents are directed to conduct petitioner’s medical examination and appoint him on the post of Constable (GD) in Central Armed Police

Forces (CAPFs), NIA & SSF and Rifleman (GD) in Assam Rifles (AR), if he is otherwise found suitable.

Needless to observe that the respondents will not act vindictively qua the petitioner and will take this order in positive stride.

As the petitioner’s assertion made on 27.11.2019 has been found to be correct, the respondents shall respectfully return the amount of

Rs.5,000/-, which petitioner has deposited under the orders of this Court.