Judgment:
* + IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 726/2013 & CM No.1401/2013 Reserved on:
18. h July,2017 Date of decision :
8. h August, 2017 RAVINDER SHARMA ........ Petitioner
Through Mr. R.K. Saini, Advocate versus 1. BORDER SECURITY FORCE, DIRECTOR GENERAL & ANR. ........ RESPONDENTS
Through Ms. Barkha Babbar, Adv. for R-1/UOI CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J.
The petitioner has filed the present petition, inter alia, praying for the reliefs mentioned in prayer clause (iii) and (iv) of the present petition. The prayers are adumbrated below:-
"“(iii) To direct the respondent nos. 1 and 2 to consider and appoint the petitioner to the post of Sub Inspector (JE-Civil) BSF; and (iv) To direct the respondent nos. 1 and 2 to accord seniority with effect from the date on which person of his batch recruited against the post of Sub-Inspector (JE-Civil) BSF advertised in the year 2012.” WP(C) 726/2013 Page 1 2. The petitioner had applied for recruitment as Sub-Inspector (JE- Civil) in the Border Security Force. Having cleared the written examination and second phase of selection process, he was called for medical examination on 3rd November, 2012 where he was declared unfit vide Memorandum dated 3rd November, 2012 on the ground of his suffering from Knock Knee and Leucoderma at left side of chest extended upto same side of back plus upper arm.
3. The petitioner had thereafter approached PGIMER, Chandigarh where he was examined by a Specialist and it was opined that the finding recorded by the Medical Officer in BSF declaring the petitioner as unfit on account of leucoderma was an error of judgment. The petitioner was opined as medically fit for the said post. The certificate records that the “stable vitligo had no physical morbidity associated.” Medical Fitness Certificate dated 6th November, 2012 in this regard had been placed on record.
4. The petitioner thereafter, got himself examined at AIIMS for Knock Knee and Leucoderma and claims that he was declared fit. The petitioner has filed certain OPD certificates dated 8th November, 2012 on record in this regard. WP(C) 726/2013 Page 2 5. The petitioner has further relied upon a medical fitness certificate dated 15th November, 2012, issued by the General Hospital, Rewari, Rajasthan, opining that he was fit for the post of Sub Inspector (JE – Civil), and also stating that the opinion of the Medical Board of Border Security Force that the petitioner was unfit due to Knock Knee was an error of judgment.
6. Armed with these certificates, the petitioner had applied for Review Medical Board. The respondents issued a list of candidates eligible to appear before the Medical Board for re-examination on 15th January, 2013 that did not contain the name of the petitioner, forcing the petitioner to file the present petition.
7. The respondents contesting the said petition have asserted that this was not a case of error of judgment and, therefore, request for Review Medical Board was rightly declined in spite of the aforesaid medical certificates. The respondents have also placed before us a handbook on Medical Examination. It states that ordinarily there would be no right to appeal against finding of Medical Authority but if the Government/Department is satisfied, on evidence placed before them, that there is a possibility of error of judgment in the decision of WP(C) 726/2013 Page 3 the Medical Authority, it can allow re-examination by the Review Medical Board.
8. This Court, under similar circumstances, by an order dated 18th July, 2017 passed in Writ Petition (C) No.3391/2012 titled Durga Singh vs. Union of India & Ors., has held that the word “possibility” in the hand book cannot be ignored and deserves significance.
9. In view of the certificates from PGIMER, Chandigarh, AIIMS and General Hospital, Rewari, Rajasthan, it would be erroneous and premature, to opine and give a final decision without medical examination by the expert doctors of the Review Medical Board. The certificates and conflicting opinion by doctors cannot be discarded on any presumption. The petitioner, therefore, could not have been denied an opportunity to be re-examined by a Review Medical Board. It is for the respondents, through the Review Medical Board, to form an opinion whether or not the petitioner suffers from any medical condition for which he could be declared as unfit.
10. In view of the above, we allow the present petition and direct the respondents to constitute a Review Medical Board for examination of the petitioner. WP(C) 726/2013 Page 4 11. In view of the lapse of time, it will be open for the respondents to completely re-examine the medical fitness of the petitioner, if it is permitted or mandated as per law. Learned counsel for the petitioner has consented to the same. The aforesaid exercise would be completed within three months from the date copy of this order is received. If on such re-examination, the petitioner is found fit for appointment, he shall be appointed to the post of Sub-Inspector (JE- Civil) in Border Security Force with immediate effect.
12. With the above directions, the writ petition is allowed with no order as to costs. NAVIN CHAWLA, J AUGUST8h , 2017 sd SANJIV KHANNA, J WP(C) 726/2013 Page 5