1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Nathmal v. State of Rajasthan & Anr. S.B.CIVIL WRIT PETITION NO.3142/1997 under Article 226 of the Constitution of India. Date of Order :: 19th February, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.R.Singhvi, for the petitioner. Mr. Sudhir Tak, for the respondents. .... BY THE COURT : REPORTABLE In pursuant to a notification dated 21.3.1992 the petitioner faced process of selection conducted by the respondents for appointment as Guard with third Battalion, Home Guards, Bikaner. On qualifying written and field work test the petitioner was subjected to medical test wherein he was declared unfit to be recruited as Guard being lacking required measurement of chest i.e. 81 cms. without expansion and 86 cms. with expansion. Accordingly, the petitioner was out- listed from the selection. By way of filing a civil 2 suit the petitioner assailed decision of the respondents and sought a mandatory injunction for reassessing his fitness by a competent medical board and to award appointment as Guard. The suit aforesaid came to be decreed on 30.8.1996 with a direction to the respondents (defendants in the suit aforesaid) to hold fresh physical and medical test within a period of one month and to include the petitioner (plaintiff in the suit concerned) in the select list, if he is found suitable. In compliance of the judgment and decree dated 30.8.1996 the Battalion Commandant, third Battalion, Border Home Guards, instructed the petitioner to report before the Medical Jurist, Bikaner for necessary medical check-up. An information to this effect was also give to the Medical Jurist, Bikaner under a communication dated 7.10.1996. As per the petitioner he reported for medical test as per the instructions, but no effort was made by the Medical Jurist to assess his medical fitness. The petitioner accordingly again agitated his cause for constituting an appropriate medical board and that appears to be constituted by an order dated 15.10.1996. It is stated by the petitioner that the medical board said to be constituted under the order dated 15.10.1996, without making proper examination submitted its report to the Superintendent, Associated Group of Hospitals, Bikaner, who in his turn remitted the same to the 3 Battalion Commandant, third Battalion, Bikaner. The petitioner immediately thereon made request to competent authorities of the Government of Rajasthan about impropriety in the medical test conducted by the board constituted under the order dated 15.10.1996. The Government on being satisfied with the stand of the petitioner superseded its all earlier orders regarding constitution of the medical board and for conducting medical test of the petitioner. A decision was also taken by the Government to reconstitute a medical board for medical examination of the petitioner as that is apparent from communication dated 15.2.1997 (Anx.10), which reads as follows:- “In this connection, it is to inform you that as per instructions of the State Government (Health Ministry), Raj., Jaipur, a review Medical Board of the examinee under subject was constituted in supersession of previous order of M/Board, (Constituted vide this office order No-Gen / AGH / Gr-II / 96 /959 dt.07-10-96 and No-983 dt.15-10-96), vide this office order No-Gen / AGH / Gr-II / 97 / 140 / 2410-16 dated 06-02-97, copies of all these orders were endorsed to your office from time to time. The report of latest M/Board has been received from the Professor & Head of the Deptt. of Forensic Medicine of this hospital vide his letter No-MJ/619/97 dated 14-02-97. The previous report of medical board, sent to your office vide this hospital letter No-Gen/ AGH/Gr-II/96/17508-09 dated 26-10-96, which 4 was challenged is the appeal to the State Govt. in Health Ministry, Raj., Jaipur, may be treated as null and void. The latest report of M/Board, as stated in para first above is being sent herewith for consideration.” (Emphasis given by me) In compliance to the instructions received from the Government of Rajasthan as referred in the communication dated 15.2.1997, the Superintendent, Associated Group of Hospitals, by an office order dated 6.2.1997 constituted a medical board consisting of three experts. The office order referred above reads as follows:- “In supersession of this office order No-Gen/ AGH/Gr-II/96/959 dt.07-10-96 and No-Gen/AGH/ Gr-II/96/983 dated 15-10-96, a fresh medical board, consisting of the following medical officers of this hospital, is hereby constituted to examine Shri Nathmal S/o Mohan Lal Bishnoi, resident of village Jaitsar, Tehsil Anupgarh, Distt. Shri-Ganganagar, on the point of view of eligibility of his examinee for appointment as Sepoy in Border Home Guards Bikaner, as per norms, of the deptt. for such appointment. The board will assemble on 07-02-97 at 9-00 a.m. for this purpose. 1-Dr. R.K.Gehlot, -- Chairman. Professor & Head, Forensic Medicine Deptt. 5 2-Dr. R.P.Agarwal, -- Member. Asstt. Professor, Medicine Deptt. 3-Dr.Ashok Parmar, -- Member. Asstt. Professor, Surgery Deptt. A fee of Rs.16/- would be deposited by the examinee on the very day of examination.” The medical board constituted under order dated 6.2.1997 examined the petitioner on 7.2.1997 and found him fit for appointment to the post of Sepoy. Quoted below are the findings given by the medical board that examined the petitioner on 7.2.1997:- “In compliance of order No-Gen/AGH/Gr-II/97/ 2410-16 dated 06-02-97 of Medical Superintendent, Associated Group of Hospitals, Bikaner, the board assembled on 07-02-97 and examined Shri Nathmal S/o Shri Mohan Lal Bishnoi, a candidate for appointment as Sepoy in Border Home Guards, Bikaner, as per norms of deptt. for the post for appointment, following are the findings:- Height -- 172 Oc. Weight -- 54.5 Kg. Chest – 82 (Eighty two) Cm. unexpanded chest. 87 (Eighty seven) Cm. expanded chest. C.V.S. -- N.A.D. Pulmonary function test – Slight restriction. Eye -- Vision 6/6 both eyes. Glaucomatous cupping with chorordel sclerosis, (Provocetric test negative). Surgical examination – N.A.D. 6 On the date of examination i.e. 07-02-97, he is fit for the post of sepoy in Border Home Guards Bikaner.” The report aforesaid was sent to the Battalion Commandant under a communication dated 15.2.1997 reference of that has already been given earlier. The Battalion Commandant by a communication dated 10.3.1997 informed the petitioner that the medical report sent to him under the communication dated 15.2.1997 cannot be taken into consideration in view of the fact that in earlier recommendation made by a competent medical board the petitioner was not found fit to be included in the select list for recruitment as Guard (Sepoy). To challenge the decision of the Battalion Commandant, third Battalion, Border Home Guards, Bikaner, this petition for writ is preferred. On behalf of the petitioner it is contended that the respondents erroneously rejected the recommendations made by a competent medical board by relying upon report of a medical board which was superseded by competent authorities of the Government of Rajasthan. In reply to the writ petition, it is stated by the respondents that the petitioner was medically examined by a competent medical board on 15.10.1996 7 wherein he was not found fit for appointment as Sepoy. The subsequent recommendation of the medical board that examined the petitioner in the month of February, 1997 cannot be taken into consideration in view of the earlier recommendations made by a competent medical board. During the course of arguments, counsel for the respondents emphasised that the process of selection in question relates to the year 1992 and now after a lapse of about 16 years, no relief as claimed by the petitioner can be given. As per counsel for the respondents the grant of relief as prayed by the petitioner at this stage shall be nothing but to provide employment to a person who is otherwise not fit and within the age limit, now to be recruited as a Guard. Heard counsel for the parties. Before examining merits of the case it shall be appropriate to first deal with the objection of counsel for the respondents regarding grant of relief claimed by the petitioner after a lapse of about 16 years from the date of completion of process of selection. The process of selection was initiated under a notification dated 21.3.1992 and subsequent thereto the petitioner was declared unfit to be recruited as Guard with third Battalion, Border Home Guards, 8 Bikaner. The petitioner immediately thereafter agitated his cause by way of filing a civil suit that came to be decreed on 30.8.1996. The petitioner even on 30.8.1996 was not within the maximum age limit prescribed for recruitment as Guard, however, no objection then was raised by the respondents regarding decree granted by the Court. If the respondents had any objection regarding appointment of the petitioner after crossing him maximum age limit, they should have raised objection in this regard before the civil court or atleast should have challenged the judgment and decree dated 30.8.1996 by way of filing a civil first appeal. The respondents instead of making any such protest, chose to execute the decree passed by the civil court. The respondents finally rejected claim of the petitioner on 10.3.1997 and the petitioner immediately thereafter filed this petition for writ for redressal of his grievance. The powers of a writ Court are quite wide and open for extending relief based on individual circumstances. A person sitting at the door of a Court must not be denied his proved right because of delay caused in adjudication due to congestion in justice delivery system. It shall always be better to think for adequate reforms in justice delivery system and Court management methods then to dishearten a faithful citizen litigating for protection of his rights with total belief in majesty of justice. The judiciary and 9 executive both are equal and independent wings of the governance under the Constitution of India, thus, the errors of system are required to be shared by the State wings and not by an ordinary citizen approaching the Court with all humility at his part. In the present case whatever delay caused in adjudication of the writ petition is because of the system and not due to the petitioner. As such, if he satisfies the Court regarding his right, then this Court must extend due relief to him. The delay caused or the changed circumstances may certainly be a reason to mould or reshape the relief as per the need of the objective conditions, but not for denial of just rights. As such, I am not at all inclined to throw this petition for writ merely on the count that a substantial period has been passed after completion of the process of selection. Now coming to the merits of the case, I am apparently of the view that the respondents erroneously denied to consider the medical report dated 14.2.1997 forwarded to them by the Superintendent, Associated Group of Hospitals, Bikaner under the communication dated 15.2.1997. After judgment and decree dated 30.8.1996 the petitioner under the instructions of the Battalion Commandant, third Battalion, Home Guards, Bikaner reported for his medical and physical test before the Medical Jurist, 10 Bikaner on 7.10.1996, however, he was not examined by the officer concerned. On pointing out this fact, a medical board was constituted on 7.10.1996 itself to examine petitioner's medical fitness. That medical board submitted its report on 25.10.1996, however, the petitioner by submitting representations to the competent authorities of the Government of Rajasthan pointed out that his medical assessment on 25.10.1996 was not made objectively and on being satisfied with the stand of the petitioner the Government of Rajasthan cancelled constitution of earlier medical board and the recommendations/report made by it. This fact is apparent from perusal of the document dated 15.2.1997 (Anx.10) and the communication dated 6.2.1997 (Anx.8). Once the constitution of medical board created under the order dated 7.10.1996 and its report submitted to the Superintendent, Associated Group of Hospitals, Bikaner remitted to the Battalion Commandant, Border Home Guards, Bikaner were cancelled then those should have not been taken into consideration at all by the authorities of the respondents. The respondents as a matter of fact were having only one valid medical report relating to the petitioner and that is dated 14.2.1997 remitted by the Superintendent, Associated Group of Hospitals, Bikaner under the communication dated 15.2.1997. As such, the rejection of the medical report dated 14.2.1997 by the Battalion Commandant, third Battalion, Border Home Guards, Bikaner is absolutely illegal. It is the 11 position admitted that in the medical report dated 14.2.1997 the petitioner was found fit to be recruited as Guard (Sepoy) with the third Battalion, Border Home Guards. The respondents, therefore, should have included the petitioner in the select list. For the reasons whatever stated above, I am inclined to accept this petition for writ. Accordingly, the same is allowed. The respondents are directed to include the petitioner in the select list prepared for recruitment of Guards in the office of the Battalion Commandant, third Battalion, Border Home Guards, Bikaner in pursuant to the notification dated 21.3.1992. The respondents are further directed to recruit the petitioner as Guard from the date other similarly selected persons were recruited with them as a consequent to the process of selection conducted under notification dated 21.3.1992. The petitioner shall be entitled for all consequential benefits including grant of seniority, promotion, fixation of pay on notional basis, revision of pay etc. However, instead of granting full back wages for the period concerned, I consider it appropriate to direct the respondents to pay a lump-sum amount of Rs.1,00,000/- (Rupees one lac only) to the petitioner as arrears of wages. The respondents may assess medical fitness of the petitioner in accordance with the rules for further continuance in service and if at this stage the petitioner is not found fit to continue as such, 12 the respondents shall be at liberty to take appropriate decision in accordance with law. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.