IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1460 of 2008 SUBODH KUMAR Versus THE UNION OF INDIA & ORS ----------- For the Petitioner : Mr. Kamal Nayan Choubey, Sr. Adv. Mr. Shiv Shankar Pd. Singh, Adv. For the Union of India : Mr. Umesh Narayan Dubey, Central Govt. Counsel For the U.P.S.C. : Mr. Sanjay Kumar, Advocate. ------------- 2 08.09.2008 Heard learned counsel for the petitioner and learned counsel for the Union of India. Petitioner was initially appointed on the post of Sub- Inspector under the respondents Border Security Force (B.S.F.). At the time of entry into service the medical board raised an objection with regard to absence of his left testis or problem related thereto. This was held out against the petitioner in the said appointment but the Review Medical Board though agreeing with the basic finding of an undesended testis on the left side, but did not agree with regard to unfitness of the petitioner for appointment as such. Petitioner had been found to be fit by the Review Medical Board as would be evident from perusal of Annexure – 1 at page 27, this opinion is dated 09.07.2004. Petitioner came to be appointed and continues to serve on the post without any let or hindrance. Subsequently, on an advertisement for filling up the post of Assistant Commandant, petitioner appeared in the examination after due permission from the competent authority. He was successful in the said examination, but medical examination which was held upon - 2 - him faced a similar problem as earlier, but this time the medical board stated that the problem is in relation to the right testis. Even the Review Medical Board report affirmed the initial finding. In this background the petitioner has been refused appointment on the post, which is the grievance of the petitioner in the present writ application. At the outset, learned senior counsel appearing on behalf of the petitioner submits that there is either something basically wrong with the opinion rendered by the medical board, for the present appointment or it could be a case of oversight or mistake having crept into the opinion recorded as such. His contention is that under the same organization if he had undergone a detailed medical examination as well as faced a review medical which found him fit, there cannot be another opinion with regard to the same problem this time stating that the problem persists in the right instead of left. The court is no expert on such medical opinions, but the court can surely record at least this much that this is not a problem of the shifting kind or a disease which had initially struck the left side of the petitioner and has now shifted to the right. Problem of undesended testis does occur in some cases and it could have a reflection on procuration capacity of the petitioner. It is not the case, as I am informed at the bar that the petitioner has a progeny. The Court has serious doubts whether the opinion rendered by the medical board which has come in the way of his selection and appointment to the post of Assistant Commandant is a bona fide objection. A counter affidavit on behalf of both Union Public Service - 3 - Commission (U.P.S.C.) as well as respondents Border Security Force (B.S.F.) has been filed. The U.P.S.C. has washed its hand of the matter by stating that holding of medical examination is not their concern. In so far as reply of the respondents Border Security Force is concerned, they have quoted and stated various things on the issue, but it does not have much reflection on the merit of the matter. There is no dispute that medical board has questioned the physical fitness of the petitioner for such appointment, but whether it can come in the way of appointment is another issue. The court records that if the petitioner’s condition earlier did not make him ineligible for appointment and he has been rendering or shouldering his responsibility under the organization as a Sub-Inspector, then for identical problem it cannot come in his way of appointment now if he is otherwise successful in the examination held for the next higher post. In view of the above, the opinion of the Review Medical Board dated 11.10.2007 contained in Annexure – R/2 is hereby quashed. A direction is hereby issued to the Director General, Border Security Force, New Delhi, that in view of the conflicting medical opinions having been rendered at two different times against the petitioner and also the fact that the medical condition pointed out by the medical board having not been held out against the petitioner in the initial appointment, if he feels the necessity then he may take the assistance of doctors of All India Institute of Medical Sciences, at the - 4 - earliest and based on the said opinion if their finding is not detrimental to the appointment of the petitioner may take such steps as is required for appointment of the petitioner on the post of Assistant Commandant. In earlier decision preferably within a period of eight weeks from the date of production/communication of a copy of this order would be in the interest of justice. The writ application is allowed with the above direction. Rajeev/ (Ajay Kumar Tripathi, J.)