Upendr Kumar v. The Union of India and 5 Others

Court No. - 34 Case :- WRIT - A No. - 19476 of 2023 Petitioner :- Upendr Kumar Respondent :- The Union Of India And 5 Others Counsel for Petitioner :- Sunil Kumar,Hira Lal Yadav Counsel for Respondent :- A.S.G.I. Hon'ble Ajit Kumar,J.

¶1Heard learned counsel for the petitioner and Sri Vivek Chaturvedi, learned Advocate holding brief of Smt. Chandrakala Chaturvedi, learned counsel for the respondents.

¶2Petitioner who has been applicant for the post of Constable .. with the Service Selection Board (SSB), has been declared unfit initially in the medical examination conducted on the ground of "Rt hand Cubitus valgus 23° CA" and thereafter upon review medical being carried out, again he was found to be "carrying Angle Right Side 22° CA". Thus, he stood declared medically unfit even in the review medical examination. He now submits that as per medical examination report that he got done independently at B.H.U. he has been found to be suffering from deformity within range of 16° CA and, therefore, as per the guidelines and the norms for the medical fitness prescribed for, he would come within the range for the purposes of selection.

¶3Counsel for the petitioner has relied upon order of this Court passed in Writ-A No.11215 of 2019 (Gajendra Rav vs. State of UP & ors) dated 01.11.2019. He has placed reliance upon a judgement of Delhi High Court in the case of Peeyush Yadav vs. Union of India Through Secretary & ors decided on 17th December, 2021 and has also relied upon judgment of Rajasthan High Court in the case of Ashish Kumar vs. Union of India & ors decided on 12th March, 2018.

¶4Per contra, it is argued by learned counsel appearing for the respondents submits that any third medical examination voluntarily done by the petitioner from any private hospital or government hospital will hardly have any bearing upon the medical and review medical examination done by a duly constituted board which consisted of expert doctors.

¶5Counsel for the respondent submits that law is well settled that review medical examination done by the expert doctors of the department cannot be doubted on this ground on the basis of a third party report.

¶6Having heard learned counsel for the respective parties, I find that once the review medical examination has been held after the first medical examination, then there is no question of this Court exercising power over and above the opinion rendered by the review medical board that consisted of expert doctors. This Court is not possessed with requisite expertise in the medical field so as to sit as an appellate authority over and above the opinion rendered by the review medical board. In the case of Vivek Kumar vs. State of UP & ors passed in special Appeal Defective No.117 of 2020, the Division Bench of this Court has held that thus: . "11. In a case where a recruitment process has been carried out as per prescribed statutory rules whereunder a procedure has been prescribed for testing the medical fitness of candidates by a duly constituted Medical Board, the report of the Medical Board is not to be normally interfered with, and that too, solely on the basis of a claim sought to be set up by a candidate on the basis of some subsequent report(s) procured by him from a private practitioner(s).

¶12It is not the case of the petitioner that the decision of the Medical Board was arbitrary, capricious or not in accordance with the procedure under the relevant statutory recruitment rules. "

¶7Even otherwise, law is well settled that "unless the opinion of the Medical Board or Review Medical Board is erroneous or capricious or vague and smacks of malafide, the Court should refrain from interfering with the opinion of Medical Board and Review Medical Board which is a body constituted of experts to assess the fitness of candidate as per the norms and standards prescribed in respect of fitness of a candidate who is supposed to work in the police force." [Union of India v. Parul Punia, 2016

(2) ADJ 14]. This judgment has been followed by a coordinate bench in the case of Ankit Kumar v. State of U.P. & Ors (Writ - A No. 5668 of 2021, decided on 03.08.2001). Recently in the case of Shahbaj Khan v. Union of India & Ors (Writ - A No. 15248 of 2023) decided on 13.07.2023, I have referred to another later judgment of Division Bench in the case of Vivek Kumar v. State of U.P. & Ors passed in Special Appeal (Defective) No. 117 of 2020, wherein it had been observed that "In a case where a recruitment process has been carried out as per prescribed statutory rules whereunder a procedure has been prescribed for testing the medical fitness of candidates by a duly constituted Medical Board, the report of the Medical Board is not to be normally interfered with, and that too, solely on the basis of a claim sought to be set up by a candidate on the basis of some subsequent report(s) procured by him from a private practitioner(s). It is not the case of the petitioner that the decision of the Medical Board was arbitrary, capricious or not in accordance with the procedure under the relevant statutory recruitment rules." Even I have followed this legal view recently in the case of Miss Neha v. State of U.P. & 4 Ors (Writ - A No. 10905 of 2023).

¶8I do not find that in any of the judgments cited by learned counsel for the petitioner legal position as discussed hereinabove and the law laid down by the Supreme Court as well as High Court has been considered.

¶9In view of the above, I do not find it to be a fit case to grant indulgence. Petition lacks merit and is, accordingly, dismissed. Order Date :- 23.11.2023 P Kesari High Court of Judicature at Allahabad