CWP No.12942 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.12942 of 2010 Date of decision : 02-12-2011 Mukesh Kumar .... Petitioner VERSUS Union of India and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present: Mr. S.S. Godara, Advocate, for the petitioner. Ms. Aakanksha Sawheny, Advocate, for Ms. Sangeeta Dubey, Advocate, for the Union of India. MAHESH GROVER, J. (Oral) Medical Certificate filed in the Court is taken on record. In this petition, the petitioner makes a prayer that he be got medically examined afresh and upon consideration of such medical examination, if declared fit, he be given appointment as a Constable Driver. The petitioner had applied pursuant to advertisement issued by the respondents on 04.08.2008 qua the post of Constable Driver in the Indo- Tibet Border Police Force (hereinafter to be referred as Force). The petitioner was fully qualified and eligible for the said post and after having faced the process of medical examination, he was declared unfit on the ground that he had some defect in his eye sight and ear. He had otherwise CWP No.12942 of 2010 -2- completed all the tests including written test and related physical test successfully. On 20.09.2009 he was subjected to X-ray examination by the ITBP authorities. The petitioner got his eye sight examined from Government Medical College & Hospital at Chandigarh who opined that the eye sight of the petitioner was perfectly all right. The selection authorities however rejected the candidature of the petitioner on the ground that distance vision of both eyes was incorrect and his right ear was suffering from some problem called Varicose vein B/Lateral TMR (RT Ear). The petitioner then got himself examined from Government Hospital, Hisar where the specialist declared him fit and opined that there was error of judgment in the examination of petitioner conducted by the ITBP authorities. The petitioner was called for re-examination by the ITBP authorities on 9.07.2009 and he was declared medically unfit once again on the same grounds. The petitioner got himself examined once again from specialist Hisar who again stated that there was error in judgment of the ITBP authorities opinion. The petitioner then submitted representations to the respondents to consider his case favorably for appointment. When nothing was done, he was constrained to file a CWP No.5028 of 2010 which was disposed of by this Court on 19.03.2010 with a direction to respondent No.2 to pass a speaking order. Annexure P-12 is the result of this exercise and the respondents have rejected the claim of the petitioner by saying that as per existing instructions on the subject of re-medical examination, the same is done by a Medical Board in order to minimize the possibility of error of judgment. The following is the extract of Annexure P-12. CWP No.12942 of 2010 -3- “2. The matter has been examined as per directions of the Hon'ble Court and it is intimated that as per existing instructions on the subject, re-medical examination by a Medical Board is done in case of possibility of error of judgment is felt or a piece of evidence about such possibility is produced by the candidate concerned. It is also intimated that only in case of unfitness on account of visual acuity the Board constituted for re-medical examination should have specialists (three ophthalmologists). 3. In no case, other than visual acuity any mention about inclusion of a specialist in re-examination boards has been made in the instructions. Accordingly, the Board for re-medical examination in your case was also constituted. 4. It is further, intimated that there is no provisions for appeal against the decision/findings of a Re-Medical Examination Board.” The petitioner has then approached this Court by way of instant writ petition. Concerned with the conflict of various medical opinions approved at after sending the petitioner to repeated medical examination, this Court vide its order dated 18.08.2011 directed the Officer-Incharge of Western Command Hospital, Chandi Mandir, Panchkula to conduct the medical examination of the petitioner from an E.N.T. specialist and to submit a report in this Court in a sealed cover. The report has since been submitted. It initially did not opine categorically about the medical fitness of the petitioner but on a direction issued by this Court on 19.10.2011 the opinion has now been submitted and according to which the Board has stated that it concurs with the findings and opinion of the specialist and a candidate is declared fit as per ITBP medical standards. In view of the aforesaid opinion by a Medical Board constituted by the Western Command Hospital, Chandi Mandir, Panchkula, I am of the CWP No.12942 of 2010 -4- opinion that the only impediment in the way of the petitioner seeking employment as a Constable Driver stands erased and thus there is no reason why he should be denied the employment. Consequently, in view of the specific opinion of the medical board, the impugned order dated 30.06.2010 (Annexure P-12) is quashed and the respondents are directed to consider the case of the petitioner for appointment as a Constable Driver by treating him as medically fit and grant him employment in case he otherwise fulfills all other conditions which are required for such employment. The petition stands allowed in the aforesaid terms. In case, the petitioner is given the employment, he shall be given all the notional benefits which accrue from such belated appointment. However, no financial benefit shall be made available to him as he had not worked on the assignment. (MAHESH GROVER) 02-12-2011 JUDGE manju