# Akhilesh Kumar Yadav v. State of U.P. and others - **Citation:** (2013) 1 ILRA 76 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2013-01-02 - **Case number:** Civil Misc. Writ Petition No. 14915 of 2011 - **Bench:** Tarun Agarwala - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-yadav-v-state-of-u-p-and-others-42531 - **Pages:** 3 ## Headnote C.S.C. U.P. Police Constable and Head constable Service Rules, 2008, Rule 15appointment on post of constable after passing physical efficiency test/medical examination and written examinationbefore could join-a complaint made as petitioner's left forefinger is cut up to the nails-not fit for Government job-on second medical board examination opinioned such physical deformity does not constitute as handicapped persondoes not make handicapped personheld-the competent authority can not sit over the opinion of medical experts-nor the claim can be rejected on surmises and conjunctures-petition alloweddirection to issue appointment letter within two weeks given. Held: Para-6 In the light of the aforesaid medical opinion given by a team of medical experts, it was no longer open to the competent authority to hold that the physical deformity may interfere in the efficient performance of his duties. The competent authority could not reject the claim of the petitioner on the basis of mere surmises and conjuctures especially when the medical opinion was otherwise. ## Text 76 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 02.01.2013 BEFORE THE HON'BLE TARUN AGARWALA, J. Civil Misc. Writ Petition No. 14915 of 2011 Akhilesh Kumar Yadav ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri V.K. Singh Sri Balwant Singh Sri G.K. Singh Counsel for the Respondents: C.S.C. U.P. Police Constable and Head constable Service Rules, 2008, Rule 15appointment on post of constable after passing physical efficiency test/medical examination and written examinationbefore could join-a complaint made as petitioner's left forefinger is cut up to the nails-not fit for Government job-on second medical board examination opinioned such physical deformity does not constitute as handicapped persondoes not make handicapped personheld-the competent authority can not sit over the opinion of medical experts-nor the claim can be rejected on surmises and conjunctures-petition alloweddirection to issue appointment letter within two weeks given. Held: Para-6 In the light of the aforesaid medical opinion given by a team of medical experts, it was no longer open to the competent authority to hold that the physical deformity may interfere in the efficient performance of his duties. The competent authority could not reject the claim of the petitioner on the basis of mere surmises and conjuctures especially when the medical opinion was otherwise. (Delivered by Hon'ble Tarun Agarwala, J.) 1. Heard the learned counsel for the parties. 2. The petitioner applied for the post of constable under Rule 15 of the U.P. Police Constable and Head Constables Service Rules, 2008. The petitioner was required to undergo a physical standard test, physical efficiency test, medical examination and written examination. In accordance with the procedure prescribed under the Rule 15 of the aforesaid Rules, the petitioner was successful in the physical standard test and the physical efficiency test and thereafter he was required to appear before the Medical Board for his medical examination. The Medical Board also cleared him. The petitioner was thereafter issued a call letter to appear for the written examination in which the petitioner participated and cleared the written examination, but before he could be issued an appointment letter, some complaint was made that the petitioner is a handicapped person and has a physical defect which may interfere with the efficient performance of his duties as a constable. In the light of the said complaint, the petitioner was again directed to appear before the Medical Board. The Medical Board after reexamining the petitioner submitted a report dated 31st August, 2010 and opined that the physical deformity in left forefinger, which is cut up to the nails, does not make the petitioner a handicapped person and that the petitioner is fit for being given an 1 All] Akhilesh Kumar Yadav V. State of U.P. and others 77 appointment in Government service. In spite of this medical report being given in his favour, the competent authority issued an order dated 15th February 2011 cancelling his appointment on the post of constable. The petitioner being aggrieved by the said order, has filed the present writ petition. 3. The impugned order and the counter affidavit indicates that the petitioner's claim for appointment on the post of constable has been rejected on the ground of physical deformity taking protection of Rule 13 of the Rules of 2008 which is extracted hereunder :- "13. Physical fitness. - No candidate shall be appointed to a post in the service unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties. Before a candidate is finally approved for appointment he shall be required to pass an examination by a medical board. Note.- The medical board shall also examine the deficiencies such as knock knee, bow legs, flat feet, vericose veins, distant and near vision, colour blindness, hearing test comprising of Rinne's test, Webber's test and tests for vertigo etc." 4. From the aforesaid rule, it is clear that no candidate could be appointed in the service if he suffers from any physical defect which is likely to interfere with efficient performance of his duties. The rule further provides that before a candidate is finally approved for appointment, he shall be required to pass an examination of a Medical Board. 5. In the instant case, the petitioner has been cleared twice by the Medical Board and, in the second medical report, the Medical Board has given a clear opinion that the physical deformity in the petitioner's left forefinger does not constitute any kind of deformity nor does it make the petitioner a handicapped person. The Medical Board has further opined that the petitioner is fit for being given an appointment in a Government service. 6. In the light of the aforesaid medical opinion given by a team of medical experts, it was no longer open to the competent authority to hold that the physical deformity may interfere in the efficient performance of his duties. The competent authority could not reject the claim of the petitioner on the basis of mere surmises and conjuctures especially when the medical opinion was otherwise. 7. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed and a writ of mandamus is issued to the respondents to issue an appointment letter in favour of the petitioner for the post in question within two weeks from the date of production of certified copy of this order. --------- 78 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 21.12.2012 BEFORE THE HON'BLE ASHOK BHUSHAN, J. THE HON'BLE PRAKASH KRISHNA, J. THE HON'BLE SANJAY MISRA, J. Civil Misc. Writ Petition No. 20740 of 2012 Arun Kumar Singh & others ...Petitioner Versus State of U.P. & Others ...Respondents Counsel for the Petitioner: Sri Siddharth Khare Sri Ashok Khare Sri Manoj Srivastava Counsel for the Respondents: C.S.C. Sri K.S.Shukla Sri S.K. Verma Constitution of India, Article 226-Right of Deputinist-parent department's decision to take back those BRC and NRPC-considering change Government Policy-facing great scarcity of teachers on through out the state-whether those deputinist could resist on ground of getting higher pay during deputation ?- held-No. Held: Para-39 Our answer to the above reframed question is that the Government order dated 2nd February, 2011, which has reconstituted the Block Resource Centres and Nyaya Panchayat Resource Centres has rightly provided for sending back the coordinator/co-coordinators to their parent institutions and their entitlement to receive higher pay scale was no impediment in sending back the said teachers, moreso when actually no Headmaster/Teacher/Assistant Teacher of primary schools was getting higher pay scale while working as coordinators of Block Resource Centres or Nyaya Panchayat Resource Centres. Case Law discussed: (1988) 2 SCC 602; (1991) 4 SCC 139; (2011) 1 SCC 694; (2011) 7 SCC 639; (2012) 7 SCC 1; (2008) 5 SCC 1; (2007) 6 SCC 276; (2010) 4 UPLBEC 2669; (1990) 3 SCC 157; (1988) Supp. SCC 740; (1983) 3 SCC 33 (Delivered by Hon'ble Ashok Bhushan, J.) 1. A learned Single Judge, while hearing Writ Petition No.20740 of 2012 (Arun Kumar Singh and others vs. State of U.P. and others) and other similar matters made a reference for constituting a Full Bench to answer following three questions:- "(a) Whether the power of the parent department to revoke the deputation even before the expiry of the term for good and valid reason is lost, only due to the fact that the deputationist was getting some additional monetary benefits while working on deputation. (b) Whether the decision of the employer in revoking the deputation even before expiry of the term on good and valid reasons would be bad merely because the employee during deputation was getting better salary/allowances. (c) Whether the Single Judge was justified in declaring the judgment of the Single Judge and of the Division Bench dated 17.02.2011 and dated 27.05.2011 respectively as per incuriam or he was obliged to refer the matter to a larger bench if he had doubts about the said judgments." 2. The Hon'ble the Chief Justice vide order dated 22nd May, 2012 constituted this Full Bench.