Vikash vs Union Of India And Anr

Rajiv Sahai Endlaw, J

CM APPL. 28581/2020 (of the petitioner for early hearing)

The counsel for the respondents Sashastra Seem Bal (SSB) appears on advance notice.

For the reasons stated, the application is allowed and disposed of and the writ petition is taken up for hearing today itself.

W.P.(C) 2333/2020

It is the plea of the petitioner in the application aforesaid, that though the writ petition came up before the Court first on 3rd March, 2020 but the

Bench before which it was listed did not assemble and the writ petition was adjourned to 16th March, 2020, since when, owing to the prevalent

pandemic, the petition is being adjourned. It is thus obvious that notice even of the petition has not been issued.

On a reading of the petition we did not find any merit therein and have thus heard the counsel for the petitioner at length, on admission.

It is the pleaded case of the petitioner, (i) that he was a candidate for recruitment to the Group-C Non Gazetted (Combatised) posts in the

respondents SSB, pursuant to the advertisement issued in the year 2016; (ii) that he is a domicile of Haryana and belongs to OBC category; (iii) that

the recruitment comprised of Physical Efficiency Test (PET), Physical Standard Test (PST), Verification of Documents, Written Examination /

Assessment and detailed Medical Examination; (iv) the petitioner cleared all the successive stages and undertook the Medical Examination at SSB

Gorakhpur Uttar Pradesh on 5th December, 2017; (v) in the said Medical Examination, the petitioner was declared unfit on the ground of “GROSS

DNS†i.e. deviated nasal septum; (vi) the petitioner got himself medically examined at a Government hospital namely Chaudhary Bansilal Hospital,

Bhiwani, Haryana, on 7th December, 2017, where the Medical Officer, ENT found the petitioner fit and opined error in the judgment of the Medical

Test conducted by SSB on account of DNS to Rfide; (vii) the petitioner, in order to get a second opinion, got himself admitted on 18th December,

2017 at Pandit B.D. Sharma Post Graduate Institute of Medical Sciences, Rohtak, Haryana and on 1t9h December, 2017 was successfully operated

upon for Septoplasty LA and was discharged on 21st December, 2017; (viii) the petitioner thereafter appealed against the decision of the Medical

Board of the respondents SSB and was called for Review Medical Examination on 31st March, 2018, where he was again declared unfit on account

of “Granâ€"DNB†and the Review Medical Board further found the petitioner to be having a Mucous Retention Cyst; and, (ix) the petitioner

through counsel sent a representation dated 21st December, 2018 to the respondents SSB and to which the respondents SSB sent a reply received by

the petitioner on 23rd January, 2019.

Impugning the rejection from recruitment for the reason of being found medically unfit, this petition dated 17th February, 2020, affidavit

accompanying which is verified on 24th February, 2020, was preferred.

The petition came up first before the Court, as aforesaid, on 3rd 8. The grievance of the petitioner in the petition inter alia is with respect to the

findings dated 5th December, 2017 of the Medical Board and 31st March, 2018 of the Review Medical Board. Aggrieved from the said findings, the

petition was brought before this Court first on 3rd March, 2020 i.e. after more than two years from the action from which the petitioner was

aggrieved. Not only so, the petitioner, for the first time protested against the findings of the Review Medical Board, in December, 2018 i.e. after 9

months. Further, a perusal of the petition shows that though the petition was prepared and ready for filing in March, 2019 but filed only by correcting

the typed date of March, 2019 to 17th February, 2020, not only at the bottom of the petition but also on the verification of the affidavit accompanying

the petition.

Considering that the grievance urged in the petition is with respect to elimination from recruitment sought and having not found any reason pleaded

in the petition for the long undue delay, we have enquired so from the counsel for the petitioner.

The counsel for the petitioner states that “the petitioner was trying otherwise in betweenâ€. However, the only averment of trying otherwise, is

of sending a notice in December, 2018 and to which a response dated 23rd January, 2019 was received. From the date of the preparation of the

petition, it appears that though the petition was prepared soon thereafter to be filed in March 2019, but the petitioner again sat over the matter for

nearly one year.

A perusal of the response dated 23rd January, 2019 to the legal notice of December 2018 got sent by the petitioner shows the respondents SSB to

have informed the petitioner, (i) that total 34 vacancies were published in the employment newspaper of 18th to 24th June, 2016 and final result of

those vacancies was declared and uploaded on SSB recruitment website on 14th May, 2018; and, (ii) the last candidate selected under the OBC

category had secured 65 marks; though the petitioner, also in the OBC category, had also secured 65 marks in the written examination but was found

unfit by the Review Medical Board.

It is evident from the aforesaid response that the result was uploaded as far back as on 14th May, 2018. Those recruited would have by now, not

only completed their training, but must have also been given postings. The petitioner now, after nearly 3 years, cannot be made to join, even if any

error was to be found in declaring him unfit, for a post which was advertised as far back as in the year 2016. The petitioner not only showed extreme

delay in preferring the petition but even after the functioning of the court has resumed in the prevalent pandemic, has waited for over 6 months for

seeking early hearing of the petition.

The petition is dismissed on account of delay, latches, acquiescence and waiver.