$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30.11.2024
+ W.P.(C) 15802/2024 & CM APPL. 66361/2024
STAFF SELECTION COMMISSION AND ORS
.....Petitioners
Through: Ms. Rupali Bandhopadhya,
CGSC with Mr. Abhijeet
Kumar, Adv.
versus
MUKESH KUMAR BARWAR .....Respondent
Through: Ms. Esha Mazumdar, Mr. Setu
Niket, Ms. Unni Maya & Mr.
Devansh Khatter, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
SHALINDER KAUR, J. (Oral)
1. The present petition under Article 226 of the Constitution of
India, has been filed assailing the Order dated 14.05.2024 passed by
the learned Central Administrative Tribunal, Principal Bench, New
Delhi (in short, Tribunal ), in the Original Application (in short,
„ ‟
OA ) No.1528/2024 titled Mukesh Kumar Barwar vs. Staff
„ ‟
Selection Commission & Ors., whereby the learned Tribunal allowed
the OA filed by the respondent herein and directed the petitioners
herein to conduct a re-medical examination of the respondent by
constituting a fresh Medical Board that would include a Specialist(s)
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By:NEELAM
Signing Date:05.12.2024
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in the respective field(s), within twelve weeks from the date of receipt
of a certified copy of the Impugned Order.
2. The present petition involves the issue with respect to the
recruitment of the respondent to the post of Constable (Executive) in
the Delhi Police, pursuant to the Notification/Advertisement dated
01.09.2023 issued by the petitioners. It is the case of the petitioners
that the respondent had applied for recruitment to the aforesaid post
and successfully qualified the Computer Based Examination (CBE).
He was then shortlisted for the Physical Endurance and Measurement
Test (PE&MT). Thereafter, a Detailed Medical Examination (in short,
22.01.2024, wherein the respondent was
“DME”) was conducted on
found unfit on the ground of ear discharge . Thereafter, the
„ ‟ „ ‟
respondent was subjected to a Review Medical Examination (in short,
RME ) on 28.01.2024, and the Review Medical Board (in short,
„ ‟
RMB ) also declared him unfit as the ENT opinion was not in his
„ ‟ „ ‟
favour on account of the discharge found in his left ear.
3. Aggrieved of the same, the respondent herein challenged the
opinion of the RMB before the learned Tribunal, who vide Impugned
Order dated 14.05.2024, allowed the OA and directed the petitioners
herein to constitute a fresh Medical Board for the re-medical
examination of the respondent herein. Dissatisfied by the Impugned
Order, the petitioners have approached this Court.
4. The learned counsel for the petitioners submits that the learned
Tribunal has failed to consider the Delhi Police (Appointment and
Recruitment) Rules, 1980, Standing Order dated 08.06.2022, and the
Notification/Advertisement dated 01.09.2023, issued by the
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By:NEELAM
Signing Date:05.12.2024
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petitioners and has passed a non-speaking order. She submits that the
Impugned Order has been passed mechanically without considering
the settled law that selection procedure, as stipulated in the
advertisement, is to be followed strictly and the Courts have no power
to relax the conditions as mentioned in such advertisement. The Delhi
Police (Appointment and Recruitment) Rules clearly prohibit the
induction of an individual with defect, deformities and disease, and
any deviation from the said Rules is not permitted. Moreso, the
respondent has already been examined twice by the Medical Boards
constituted by the petitioners and has been declared unfit by both.
„ ‟
The learned Tribunal could not have disbelieved the opinions of two
Boards without assigning any reasons and, therefore, the Impugned
Order is liable to be quashed.
5. Per contra, the learned counsel for the respondent, while
refuting the submissions of the petitioners, contends that the DME and
the RME reports are contradictory as the DME has found the
respondent on account of defective left eye with 6/12 vision
„unfit‟
and DNS, whereas the RMB found him fit with respect to his
defective vision and only found mild DNS but declared him unfit on
„ ‟
account of discharge in the left ear. The learned counsel submits that
the Impugned Order does not warrant any interference by this Court.
She places reliance on the decision of the Supreme Court dated
19.07.2019 in W.P.(Civil) 444/2019 titled Dharamvir Singh vs. The
State of Uttar Pradesh & Anr. and on the decision of this Court dated
11.11.2024 in W.P.(C) 15619/2024 titled Ayush Dubey vs. Union of
India & Ors.
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Digitally Signed
By:NEELAM
Signing Date:05.12.2024
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6. The learned counsel further draws our attention to the reports of
the doctors of the Lok Nayak (in short, LNJP ) Hospital dated
„ ‟
21.03.2024 and of the Ram Manohar Lohia (in short, RML ) Hospital
„ ‟
dated 22.03.2024, where the respondent had gotten himself examined
on his own, who have opined that currently the left ear of the
respondent was found to be non-active/dry and healthy.
7. We have heard the submissions made by learned counsels for
the parties and perused the record.
8. We find that there is no concurrence of opinion delivered by the
two Medical Boards constituted by the petitioners. The DME had
recommended rejection of candidature on account of
the respondent‟s
right DNS, defective left eye with 6/12 vision, and left TM
perforation. On the other hand, the RMB found the respondent fit
with respect to the said left eye defect, however, it found a mild DNS
and declared the respondent on the basis of his left ear
„unfit‟
discharge.
9. Pertinently, The LNJP Hospital, where the respondent went for
his medical examination on his own, opined that no active ENT
intervention is needed as the left ear TM graft was intact, mastoid
cavity was well epithelialized and the ear was found to be non-
“
active/dry and healthy . The RML Hospital, confirmed the findings of
”
the LNJP Hospital by opining that no advice is intended from
“ ENT”
and ear TM graft intact and ear was well epithelialized and
“ ” “
healthy .
”
10. Needless to say, the respondent was examined twice by the
Medical Boards constituted by the petitioners and was found to be
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By:NEELAM
Signing Date:05.12.2024
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medically for different reasons. On the other hand, the opinion
„Unfit‟
of the LNJP and the RML Hospitals, where the respondent got himself
examined on his own, did not find any abnormality in the left ear of
the respondent, for which he was declared unfit by the RMB.
„ ‟
11. We may reproduce the relevant extract from the Order dated
11.11.2024 passed by this Court in Ayush Dubey (supra) which reads
as under:
7. Keeping in view the difference of opinion
“
between the Detailed Medical Examination,
the Review Medical Board, and the reports
from the other hospitals on which the
petitioner is relying upon as mentioned
hereinabove, and keeping in view the fact that
the further selection process for the
examination will continue, thereby, leading to
rights being created in favour of third parties,
we are of the opinion, that without going into
the merits of the contentions raised by the
petitioner, the petitioner should be
immediately examined by a Medical Board to
be constituted by the Army Hospital (R & R),
Delhi Cantt, New Delhi, within a period of one
week from today.”
12. From the above, it emerges that when there is a difference in the
opinions rendered by the Medical Boards constituted for the selection
process and by the other hospitals, on the ailment of a selected
candidate for recruitment. It is appropriate to direct a fresh medical re-
examination.
13. Keeping in view the above, we find no infirmity in the
Impugned Order dated 14.05.2024 passed by the learned Tribunal.
Accordingly, we uphold the decision of the learned Tribunal, which
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Digitally Signed
By:NEELAM
Signing Date:05.12.2024
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hereby stands affirmed. However, we make it clear that the decision of
the Medical Board, which is to be constituted afresh for re-examining
the respondent, shall be binding on the parties.
14. The petition is dismissed in the above terms. Pending
application also stands dismissed.
SHALINDER KAUR, J
NAVIN CHAWLA, J
NOVEMBER 30, 2024/ab/KM/SJ
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W.P.(C)15802/2024 Page 6 of 6
Digitally Signed
By:NEELAM
Signing Date:05.12.2024
15:33:18