C.W.P. No. 2593 of 2009 -1- ****** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.W.P. No. 2593 of 2009 (O&M) Date of Decision : 30.07.2010 Vishnu Kant .......... Petitioner Versus Union of India & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Mukund Gupta, Advocate for the petitioner. Ms. Geeta Singhwal, Central Government standing counsel for the respondents. **** VINOD K. SHARMA, J. (ORAL) The petitioner invoked the writ jurisdiction of this Court to challenge the decision of appeal, Medical Board, declaring him medically unfit for being appointed as a Lower Division Clerk in the Border Roads Organization, of the Union of India. The petitioner passed his matriculation examination in March 2000 from the Kendriya Vidyalya Chandigarh. In pursuance to the advertisement issued in May, 2007, the petitioner applied for the post of Lower Division Clerk in the Border Roads Organization, as the petitioner had the essential qualifications, he was called for interview, as well as physical and written test by respondent No.3 on 15.9.2008. The petitioner was declared successful for appointment C.W.P. No. 2593 of 2009 -2- ****** as Lower Division Clerk. He was called for typing test on 17.9.2008, in which he was declared successful. After having completed initial formalities of selection as Lower Division Clerk, the petitioner was subjected to Medical Examination, where he was declared medically unfit, for the reason, that defect in the left ear of the petitioner was noticed. The petitioner was declared to be suffering from CSOM (Left). As per the Regulations of the Department, the petitioner was given liberty to file an appeal against his rejection on medical ground, after depositing a sum of Rs. 40/-. The petitioner deposited a sum of Rs. 40/- for being re-examined by the Medical Board. Furthermore, in order to remove the defect pointed out in the medical examination he got himself operated at Pandhi Hospital, Chandigarh. The petitioner claimed that after operation the petitioner was medically fit. The case of the petitioner is that after the treatment the Medical Board of Deendayal Memorial Hospital, Pune found the petitioner to be medically fit, the hospital which had initially declared the petitioner unfit, by recording as under :- “This is to certify that Vishnu Kant has undergone M'PLASTY. I have examined his nex-pympanic membrane which is in normal limits. Please give your expert opinion if any thing is needed.” The case of the petitioner is that on being declared medically fit by the Army Hospital, he made a representation to the C.W.P. No. 2593 of 2009 -3- ****** respondents for giving him appointment, because he was found to be medically fit. The case of the petitioner further is that he even got himself medically re-examined from the Government Medical College and Hospital, Sector 32, Chandigarh, and his left ear was declared to be perfect. It was reported that the petitioner is not suffering from CSOM (Left). As no action was taken by the respondents, a legal notice was issued. The representation made by the petitioner was rejected, vide impugned order dated 5.1.2009 (Annexure P-13), which reads as under :- “ ADVERTISEMENT NO. 01/2007 : LDC : RECRUITMENT 1. Reference your application dated 06 Dec. 2008. 2. You were declared permanently medically unfit for service in this organization by the competent medical authority of Military Hospital, Kirkee, Pune due to CSOM (Left). No appeal can be made against the opinion /decision of the competent Medical authority. 3. In view of the above, no action can be taken by this office on your application cited above. However your candidature for the post of LDC has been cancelled at this stage.” On notice, the writ petition is contested, primarily on the ground that the petitioner was found unfit in the medical examination and that he had failed to avail his remedy of appeal, therefore, his C.W.P. No. 2593 of 2009 -4- ****** case could not to be considered at this stage. The facts mentioned above, show that the claim of the petitioner is genuine, which is being denied merely on technical ground. The petitioner had got himself re-examined from the Military Hospital at Pune, where he was declared medically fit, because of the treatment undertaken by him. The facts, further show that the medical unfitness of the petitioner was merely temporary and not of permanent nature, therefore an option should have been given to the petitioner to get his defect corrected and thereafter consider his case for appointment. The impugned order also shows non-application of mind, as it is mentioned that no appeal was competent against decision of Medical authority. This is on the face of it perverse, as the petitioner was given an option to appeal against decision by depositing of Rs. 40/- which he did within the stipulated period, and was also re-examined by the Military Hospital. The only point to be considered at present is, “Whether the petitioner could file appeal against Medical opinion, declaring him unfit for appointment ?” The answer to the question is in the affirmative. The stand of the respondents, that the petitioner has not availed the opportunity of appeal within time, on the face of it is not acceptable, as the petitioner had moved an application along with a sum of Rs. 40/- as directed within the time prescribed for appeal. The petitioner even got himself medically examined from C.W.P. No. 2593 of 2009 -5- ****** the Military Hospital, where he was declared fit, the certificate of Military Hospital was ignored by the respondents, and his representation mechanically rejected. The action of the respondents is nothing but out come of arbitrary exercise of power, therefore, is violative of Article 14 of the Constitution of India, therefore, can not be sustained in law. In view of finding, referred to above, this writ is allowed, the impugned order is set aside. The respondents are directed to constitute a Medical Board to re-examine the petitioner, and in case he is found fit then he be appointed against the post reserved for him by this Court by way of interim order. The Medical Board be constituted within one month from the date of receipt of certified copy of this order. No costs. 30.07.2010 (VINOD K. SHARMA) 'sp' JUDGE