# Ankit Kumar v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1156
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-03
- **Case number:** WRIT A No. 5668 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankit-kumar-v-state-of-u-p-ors-47360
- **Pages:** 11

## Headnote

A. Service Law - Recruitment - Uttar
Pradesh
Police
Constable
and
Head
Constable Service Rules, 2015 - Rule
15(g) - Scope of Interference - Unless and
until
the
candidate
demonstrates
by
placing genuine and authentic material
that the opinion of the Medical Board or
Review Medical Board is erroneous or
capricious or vague and smacks of mala
fide,
the
Court
should
refrain
from
interfering with the opinion of Medical
Board and Review Medical Board which is a
body constituted of experts to assess the fitness
of candidate as per the norms and standards
prescribed in respect of fitness of a candidate
who is supposed to work in the police force.
Opinion of the Medical Board is to be
given due weight, credence, and value.
(Para 26, 27, 33)

This Court has power u/Article 226 of the
Constitution of India to interfere with the opinion
of the Medical Board or Review Medical Board,
but such power has to be exercised cautiously
and sparingly in exceptional circumstances only in
a given case where it is demonstrated that the
opinion of the Medical Board or Review is
palpably erroneous. (Para 34)

In the present case, it is not in dispute that the
petitioner has been found medically unfit by the
Medical Board constituted by the Appointing
Authority. The petitioner, thereafter, submitted
representation against his rejection by the
Medical Board, and the petitioner was sent for
the re-medical examination before the Review
Medical Board. The Review Medical Board also
concurred with the opinion of the Medical Board.
(Para 28)

There is no pleading in the writ petition as to
how the reports of two doctors procured by the
petitioner are authentic and correct to create a
doubt about the opinion of the Medical Board
and Review Medical Board declaring the
petitioner medically unfit. (Para 29, 35)

If the report of the private doctor or from any
Government Hospital is relied upon to doubt the
veracity of the opinion of the Medical Board,
then that would derail the selection process, and
if such process is allowed to be continued, it
would be very difficult for the recruiting body to
bring the selection process to the logical end.
(Para 31, 32)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

1156 INDIAN LAW REPORTS ALLAHABAD SERIES

21. The operative portion of sub-rule
(1) of Rule 86-A limits the exercise of
power (by the authorized officer), to the
amount that would be sufficient to cover
the input tax that, according to the revenue,
had either been fraudulently availed or to
which the assessee was not eligible. It is an
amount equal to that amount which has to
be kept unutilised.

22. To that effect, the legislature has
chosen the words 'not allow debit'. To not
allow debit and to appropriate the same are
two different things in the context of the
Statute.
They
lead
to
different
consequences. While the first only creates a
lien in favour of the revenue by blocking
utilization of that amount, appropriation of
an amount would necessarily involve
transfer of title over the money with the
revenue. Plainly, the Rule does not
contemplate
or
speak
of
such
a
consequence.

23. Thus, if the petitioner was to earn
any further input tax credit in its electronic
credit
ledger
upto
the
tune
of
Rs.7,06,66,700.00/-, the same would be
retained by way of a lien in favour of the
revenue, so however, that the revenue may
not
appropriate
it
under
that
Rule.
Adjustment or appropriation may arise only
upon an adjudication order attaining
finality or after lapse of three months from
the date of it being passed if there is no stay
granted in appeal etc. that too as a
consequence of the recovery provisions but
not under Rule 86-A of the Rules.

24. Since, according to us, the
provision of Rule 86-A is not a recovery
provision but only a provision to secure the
interest of revenue and not a recovery
provision, to be exercised upon the
fulfillment of the conditions, as we have
discussed above, we are not inclined to
accept the further submission advanced by
the learned counsel for the petitioner that
there is any violation of the principle when
a legislative enactment requires an act to be
performed in a particular way it may be
done in that manner or not at all.

25. It also stands to reason, if there is
no positive credit standing in the electronic
credit ledger on the date of the order,
passed under Rule 86-A, that order would
be read to create a lien upto limit specified
in the order passed as per Rule 86-A of the
Rules. As and when the credit entries arise,
the lien would attach to those credit entries
upto the limit set by the order passed under
Rule 86-A of the Rules. The debit entry
recorded in the electronic credit ledger
would be read accordingly.

26. Therefore should the assessee earn
further credit of 'input tax' the revenue
would be entitled to a lien upto the limit of
Rs.7,06,66,700.00/-. However, the same
shall not be adjusted in favour of the
revenue except in accordance with law, as
discussed above. Any further credit that
may arise over and above that amount
would be allowed to be utilized without
objection by the revenue.

27. Writ petition is dismissed. No
order as to costs.
----------

(2021)09ILR A1156
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 5668 of 2021
9 All Ankit Kumar Vs. State of U.P. & Ors.
1157
Ankit Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Sanehi Yadav

Counsel for the Respondents:
C.S.C.

A. Service Law - Recruitment - Uttar
Pradesh
Police
Constable
and
Head
Constable Service Rules, 2015 - Rule
15(g) - Scope of Interference - Unless and
until
the
candidate
demonstrates
by
placing genuine and authentic material
that the opinion of the Medical Board or
Review Medical Board is erroneous or
capricious or vague and smacks of mala
fide,
the
Court
should
refrain
from
interfering with the opinion of Medical
Board and Review Medical Board which is a
body constituted of experts to assess the fitness
of candidate as per the norms and standards
prescribed in respect of fitness of a candidate
who is supposed to work in the police force.
Opinion of the Medical Board is to be
given due weight, credence, and value.
(Para 26, 27, 33)

This Court has power u/Article 226 of the
Constitution of India to interfere with the opinion
of the Medical Board or Review Medical Board,
but such power has to be exercised cautiously
and sparingly in exceptional circumstances only in
a given case where it is demonstrated that the
opinion of the Medical Board or Review is
palpably erroneous. (Para 34)

In the present case, it is not in dispute that the
petitioner has been found medically unfit by the
Medical Board constituted by the Appointing
Authority. The petitioner, thereafter, submitted
representation against his rejection by the
Medical Board, and the petitioner was sent for
the re-medical examination before the Review
Medical Board. The Review Medical Board also
concurred with the opinion of the Medical Board.
(Para 28)

There is no pleading in the writ petition as to
how the reports of two doctors procured by the
petitioner are authentic and correct to create a
doubt about the opinion of the Medical Board
and Review Medical Board declaring the
petitioner medically unfit. (Para 29, 35)

If the report of the private doctor or from any
Government Hospital is relied upon to doubt the
veracity of the opinion of the Medical Board,
then that would derail the selection process, and
if such process is allowed to be continued, it
would be very difficult for the recruiting body to
bring the selection process to the logical end.
(Para 31, 32)

Writ petition dismissed. (E-4)

Precedent followed:

1. Vivek Kumar Vs St. of U.P. & ors., 2020 ADJ
Online 0073 (Para 14, 25)

2. U.O.I. & ors. Vs Parul Punia, 2016 (2) ADJ 14
(Para 14, 24)

3. Md. Arshad Khan Vs The St. of U.P. Through
Additional Chief Secretary, Principal Secretary,
Home & ors., 2020 (9) ADJ 457 (Para 14, 26)

4. Diwakar Paswan Vs St. of U.P. & ors., (2021)
ILR 2All 192 (Para 14, 27)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
petitioner and Sri R.S. Umrao, learned
Standing Counsel for the respondents.

2. The petitioner by means of the
present writ petition has prayed for a writ
of mandamus commanding respondents to
conduct his re-medical examination for the
post of Constable in Uttar Pradesh
Police/Constable,
Civil
Police,
and
Constable P.A.C. Direct Recruitment-2018.

3. The brief facts of the case are that a
notification
dated
16.11.2018
was
published by the U.P. Recruitment and
Promotion
Board,
Lucknow
inviting
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
applications for recruitment of 49,568 posts
for U.P. Police/Constable, Civil Police and
Constable, P.A.C. Direct Recruitment2018.

4.

Pursuant
to
the
aforesaid
advertisement, the petitioner submitted an
online application for being considered for
appointment on the post of Constable in
U.P. Police. The petitioner was called to
appear in the physical efficiency test for the
post of Constable in U.P. Police at 8th
Batallion P.A.C., Bareilly in which he was
found fit.

5. Thereafter, the documents of the
petitioner relating to his qualification were
checked and verified by the Recruitment
Board. Subsequently, the petitioner was
called
for
medical
examination
on
12.03.2021 at Police Lines by Senior
Superintendent
of
Police,
Etah.
The
petitioner appeared before the Medical
Board on 12.03.2021 and was found unfit
due to impaired ears.

6. Against the report of the Medical
Board,
the
petitioner
submitted
a
representation
for
a
re-medical
examination. The petitioner presented
himself for a re-medical examination in
which he was again found unfit due to
dysfunctional ears. After the result of the
re-medical examination, the petitioner got
his ears checked by one Dr. Ashwani
Kumar ENT Specialist, and according to
his report dated 21.03.2021, the ears of
the petitioner are fine, copy of the said
report is annexed as Annexure 9 to the
writ petition.

7. The petitioner also filed a
prescription
issued
by
Government
District Hospital, Etah to demonstrate
that his ears are fine. The prescription
issued by Government District Hospital,
Etah states that there is no dysfunction in
the petitioner's ear.

8. Relying upon the aforesaid two
medical reports issued by Dr. Ashwani
Kumar and Government District Hospital,
Etah, the petitioner has stated that the
Medical Board did not examine him
properly and he was wrongly declared
unfit.

9. In the aforesaid backdrop, he has
prayed
for
a
writ
of
mandamus
commanding respondents to conduct the
re-medical examination.

10.
Learned
counsel
for
the
petitioner has contended that two medical
reports issued by Dr. Ashwani Kumar
ENT Specialist and medical report of
Government
District
Hospital,
Etah
suggest that there is no dysfunction in the
ears of the petitioner. Accordingly, he
submits that the petitioner has been
illegally declared medically unfit. The
petitioner in support of his case has relied
upon an interim order dated 23.07.2021
in Writ-A No.6681 of 2021. Accordingly,
he prays for parity of the interim order
dated 23.07.2021 in Writ-A No.6681 of
2021. Thus, he submits that action of the
respondents in declaring the petitioner
medically unfit is arbitrary and amounts
to deny an opportunity of employment to
the petitioner illegally.

11. Learned counsel for the petitioner
has also placed reliance upon the judgment
of this Court in Special Appeal Defective
No.639 of 2020 to contend that in the said
appeal, identical interim order which has
been passed in Writ-A No.1680 of 2020
was assailed, and this Court dismissed the
Special Appeal. Thus, he submits that it is a
9 All Ankit Kumar Vs. State of U.P. & Ors.
1159
fit case where the Court should command
respondents to conduct the re-medical
examination of the petitioner.

12. Per contra, learned Standing
Counsel would contend that the Medical
Board is a body consisting of experts, and
keeping in view the need and requirement
of the police force about the physical
fitness of a candidate, certain parameters
have been laid down within which doctors
of the Medical Board conduct the medical
examination of a candidate and determine
as to whether the candidate is medically fit
or not. He submits that unless it is pointed
out that Medical Board has conducted the
medical examination of the petitioner
malafidely or capriciously with an intent
that the candidate does not get selected, the
Court should refrain from supplanting its
opinion over the report of the Medical
Board.

13. He contends that in the present
case, the petitioner has been found
medically unfit by the Medical Board and
also on re-medical examination by the
Review Medical Board, and there is
nothing on record to demonstrate that
medical examination, as well as review
medical examination of the petitioner
conducted by the Medical Board, smacks of
malafide with a motive to keep the
petitioner out of selection. Accordingly, he
submits that the writ petition lacks merit
and deserves to be dismissed.

14. He submits that the report of Dr.
Ashwani Kumar, ENT Specialist and
Government District Hospital, Etah cannot
be relied upon in the absence of proof of its
authenticity, and further perusal of the two
medical reports do not disclose the
procedure which had been adopted by the
two doctors in examining the petitioner and
concluding that the petitioner's ears are
fine.
In
support
of
his
aforesaid
contentions, he has placed reliance upon
the following judgments of this Court:-

(i). Vivek Kumar Vs. State of
U.P. and Others 2020 ADJ Online 0073;

(ii). Union of India and Others
Vs. Parul Punia 2016 (2) ADJ 14;

(iii). Md. Arshad Khan Vs. The
State of U.P. Through Additional Chief
Secretary, Principal Secretary, Home and
Others 2020 (9) ADJ 457;

iv. Diwakar Paswan Vs. State of
U.P. and Others 2021 (0) Supreme (All)
47.

15. I have considered the rival
submissions of the parties and perused the
record.

16. Before dealing with the contention
advanced by the learned counsel for the
petitioner, it would be apt to refer to Rule
15 (g) of Uttar Pradesh Police Constable
and Head Constable Services Rules, 2015
(hereinafter referred to as 'Rules, 2015')
and Appendix 3 which are being extracted
herein-below:-

"15.
Procedure
for
Direct
Recruitment to the post of Constable.-

(a)......

(b)...

(c)...

(d)...

(e)...
1160 INDIAN LAW REPORTS ALLAHABAD SERIES

(f)...

(g) Medical Examination.-The
candidates whose name are in the select list
sent as per clause (e), will be required to
appear for Medical Examination by the
Appointing authority. Medical Examination
will be conducted in the Police Line of the
concerned
District
or
at
the
place
mentioned by the Appointing authority.
Medical Examination will be conducted as
per Appendix 3. The candidates found
unsuccessful in Medical Examination shall
be declared unfit by the Appointing
authority and such vacancies shall be
carried forward for next selection."

"APPENDIX 3

[See Rule 15g]

Medical Examination for direct
recruitment

The Appointing authority will
request the Chief Medical Officer of the
concerned District to constitute Medical
Board
for
conducting
Medical
Examination. The Medical Board will
consist of three Doctors, who will
conduct Medical Examination as per
"Police
Recruitment
Medical
Examination Forms" as prescribed and
codified by Head of Department in
consultation with Director General of
Medical Health. This form will be
available on U.P. Police website and also
displayed at the place of Medical
Examination. Medical Board may take
services
of
any
expert
as
per
requirements.

(1) The doctors will examine the
candidates in accordance with the Medical
Manual, if any, and announce the result on
the day of the Medical Examination.

(2) The result of the Medical
Examination will be displayed on the notice
board outside the premises at the end of the
day.

(3) Any candidate not satisfied
by his Medical Examination, may file an
appeal on the day of examination itself.
Any appeal in regard to Medical
Examination will not be considered if
the candidate fails to file appeal on the
date
of
Medical
Examination
and
declaration of its result itself. The
appeal should be disposed of by the
Medical Board, constituted for the same
purpose within two weeks of the appeal
being
filed.
The
Medical
Board
constituted for appeal shall have expert
regarding Medical deficiency of the
applicant.

(4) The members of the Medical
Board who are found to give wrong
report wilfully will be liable for criminal
proceedings.

(5) The Medical Examination is
only qualifying in nature and it has no
effect on the merit list.

Note.- The Medical Board will
examine
the
candidates
and
their
deficiencies such as knock knee, bow
legs, flat feet, varicose veins, distant and
near vision, colour blindness, hearing
test
comprising
of
Rinne's
Test,
Webber's Test and tests for vertigo etc.
as notified by the government from time
to time. The Medical Board may get
conducted
other
examinations
after
obtaining opinion of experts.".
9 All Ankit Kumar Vs. State of U.P. & Ors.
1161

17. According to Rule 15(g) of the
Rules, 2015, a candidate is required to
undergo medical examination for ascertaining
whether the candidate is medically fit for the
post of Constable. The said rule provides that
medical examination will be conducted as per
Appendix 3.

18. A reading of Appendix 3, extracted
above,
discloses
that
the
appointing
authority will request the Chief Medical
Officer of the concerned District to
constitute Medical Board for conducting the
medical examination. The Medical Board
will consist of three doctors, who will
conduct medical examination as per "Police
Recruitment Medical Examination Forms"
as prescribed and codified by the Head of
Department in consultation with Director
General of Medical Health.

19. Paragraph 1 of Appendix 3 further
stipulates that doctors will examine the
candidates in accordance with the Medical
Manual, if any, and announce the result on
the same day.

20. Paragraph 4 of Appendix 3 provides
that members of the Medical Board who are
found to give wrong report willfully will be
liable for criminal proceedings.

21. A reading of Rule 15(g) of Rules,
2015 read with Appendix 3 discloses that
the procedure for medical examination has
been provided in Appendix 3 and according
to which, Medical Board shall consist of
three doctors constituted by the Chief
Medical Officer of the concerned district.
The medical examination of a candidate is to
be conducted as per the medical manual, and
if any member of the Medical Board is
found to have given wrong report willfully,
he/she
will
be
liable
for
criminal
proceedings.

22. Thus, it can be safely culled out
that legislature has taken every care in
constituting the Medical Board to conduct
medical examination of a candidate fairly
and without any bias. It is apt to notice that
paragraph 4 of Appendix 3 provides that if
members of the Medical Board give wrong
report wilfully, they will be liable for
criminal prosecution.

23. At this point, it would be apposite
to consider when this court can interfere
with the opinion of the Medical Board and
Review Medical Board in the exercise of
power under Article 226 of the Constitution
of India.

24. In the case of Parul Punia
(supra), this Court has set aside the
judgment of Single Judge whereby learned
Single Judge has allowed the writ petition
of a candidate holding that respondent was
wrongly
disqualified
in
the
medical
examination by the appellant. In this
respect, paragraphs 6, 9 & 10 of the said
judgment
are
being
extracted
herein
below:-

"6.
The
first
reason
which
weighed with the learned Single Judge was
that the representation had been rejected in
a
'casual
manner
without
assigning
convincing reasons' in support of the order.
This reading of the learned Single Judge of
the order disposing of the representation is
not
correct.
The
Chief
Security
Commissioner in his order dated 8 June
2015 recorded that once the respondent
had been found not to meet the prescribed
norms in the course of the medical
examination and was categorized in
category B-1, her name could not be
included in the select list. This cannot in
our view be regarded as an order which
has been passed in a casual manner and
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
without convincing reasons. The second
reason which weighed with the learned
Single Judge was that the respondent had
produced a report of a Doctor from the All
India Institute of Medical Sciences, Dr
Rajendra
Prasad.
Without
casting
aspersions on the expertise of the Doctor
whose report was produced by the
respondent,
we
must
emphasize
the
inherent danger in the Court following
such a line of inquiry. In a number of such
cases,
candidates
who
have
been
invalidated on medical grounds produce
expert opinions of their own to cast doubt
on the credibility of the official medical
report constituted by the recruiting body. In
such cases, the Court may not have any
means of verifying the actual identity of the
person who was examined in the course of
the medical examination by the Doctor
whose report is relied upon by the
candidate.
Hence,
even
though
the
authority
whose
medical
report
was
produced by the candidate may be an
expert, the basic issue as to whether the
identity
of
the
candidate
who
was
examined, matches the identity of the
person who has applied for the post is a
serious issue which cannot be ignored. The
third reason which weighed with the
learned Single Judge in passing the interim
order was that in a judgment of a Division
Bench dated 21 November 2007 (Arvind
Kumar Sonkar vs. State of U.P. and Ors.)3,
such a course of action had been followed
of having the candidate examined by a
substitute Board. What the learned Single
Judge while passing the interim order
failed to notice was the fact that the order
dated 21 November 2007 of the Division
Bench was passed by consent. In that case,
a learned Single Judge had directed the
authorities to get the petitioners examined
by a special medical Board. The petitioners
had challenged an order of termination
which had been passed on the ground that
they had failed to fulfill the minimum
eligibility requirement for the post of
constables. When the appeal filed by the
constables came up for hearing before the
Division Bench, the order of the learned
Single Judge was modified by consent so as
to provide for separate Boards, one for the
purpose of an eye test and the other for a
physical test. The Boards were to consist of
a Doctor each from a Government
Hospital, Sanjay Gandhi Post Graduate
Institute and KGMC. This order which was
passed by consent would therefore not be of
precedential
value.
Hence,
the
considerations which weighed with the
learned Single Judge in issuing an interim
direction of 16 September 2015 would not
sustain such an order being passed.

9. We also note that by the
interim order of the learned Single Judge
dated 16 September 2015, the Principal,
KGMC was required to inform the
Inspector
General-cum-Chief
Security
Commissioner of the Railway Protection
Force who could depute an officer to be
present at the time of examination. The
grievance of the appellants is that no such
communication
was
issued
by
the
Principal, KGMC to the Chief Security
Commissioner and hence, no representative
could be even deputed for the purpose of
verifying the identity of the respondent. We
are highlighting this aspect to emphasize
the danger when the Court takes upon itself
the process of reassessing findings which
are contained in the medical examination
conducted in the course of the recruitment
process. Undoubtedly, in a suitable case,
the powers of the Court under Article 226
are wide enough to comprehend the
issuance of appropriate directions but such
powers have to be wielded with caution and
circumspection. Matters relating to the
9 All Ankit Kumar Vs. State of U.P. & Ors.
1163
medical evaluation of candidates in the
recruitment
process
involve
expert
determination.
The
Court
should
be
cautious
in
supplanting
the
process
adopted by the recruiting agency and
substituting it by a Court mandated
medical evaluation. In the present case the
proper course would have been to permit
an evaluation of the medical fitness of the
respondent by a review medical board
provided by the appellants. Otherwise, the
recruitment process can be derailed if such
requests of candidates who are not found to
be medically fit for reassessment on the
basis of procedures other than those which
are envisaged by the recruiting authority
are allowed. This would ordinarily be
impermissible.

10. For these reasons, we are of
the view that the line of approach which
was followed at the interlocutory stage by
the learned Single Judge while passing the
interim order dated 15 September 2015 and
which ultimately merged in and formed the
basis of the final direction dated 26
November 2015 is unsustainable.

25. This Court in the case of Vivek
Kumar (supra) held that subsequent medical
examination reports submitted by a candidate
will not override or set at naught the opinion
of the medical board. Paragraphs 7, 8, 11 &
12 of the said judgment are being extracted
herein below:-

"7. The scope of interference in
matters relating to assessment of fitness by
a Medical Board constituted under the
statutory rules in exercise of powers under
writ jurisdiction, in our opinion, would be
extremely limited.

8. The Courts have, time and
again, emphasised the need for caution
when candidates seek to assail the
correctness of the findings of a Medical
Board constituted under a recruitment
process adopted by the State authorities, on
the basis of some medical report obtained
by them.

11. In a case where a recruitment
process has been carried out as per
prescribed statutory rules whereunder a
procedure has been prescribed for testing
the medical fitness of candidates by a duly
constituted Medical Board, the report of
the Medical Board is not to be normally
interfered with, and that too, solely on the
basis of a claim sought to be set up by a
candidate on the basis of some subsequent
report(s) procured by him from a private
practitioner(s).

12. It is not the case of the
petitioner that the decision of the Medical
Board was arbitrary, capricious or not in
accordance with the procedure under the
relevant statutory recruitment rules."

26. In the case of Md. Arshad Khan
(supra), this Court placing reliance upon
the judgment of this Court in the case of
Vivek Kumar (supra) dismissed the appeal
holding that in the absence of any material
on record to suggest that the opinion of the
Medical Board or Appellate Medical Board
in
any
manner
is
casual,
inchoate,
perfunctory or vague, the report of Medical
Board and Appellate Medical Board are not
to be interfered with. It is further held that
the opinion of the Medical Board is to be
given due weight, credence, and value.

27. In the case of Diwakar Paswan
(supra) this Court held that the opinion of
the Medical Board and experts should not
be lightly interfered with unless it is shown
to be contrary to the standards prescribed or
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
smacks of malafide. Paragraphs 8 & 9 of
the said judgment are being extracted
herein below:-

"8. It becomes pertinent to note
that the opinions formed by the Medical
and Review Boards have not been assailed
by the petitioner on the ground of mala
fides. A review of those decisions is sought
solely on the basis of a contrary opinion
rendered by a doctor of a government
hospital. Permitting a reopening of a
medical examination conducted by the
respondents solely on that basis would set a
dangerous precedent especially when the
Court by virtue of its inherent limitations
would be wholly unequipped to undertake a
comparative analysis or evaluation of
competing
medical
opinions.
Medical
fitness
is
a
subject
best
left
for
determination by experts and should not be
lightly interfered with unless it be shown to
be contrary to the standards prescribed or
otherwise be liable to be assailed on other
judicially manageable parameters.

9.
Quite
apart
from
the
consistent view taken by Courts on this
question regard must also be had to the
fact that the medical examination in the
present
case
was
undertaken
in
accordance with the provisions made in
the statutory rules. Those Rules confer
finality upon the opinions formed by the
Medical Boards subject to an appeal
against the same before a Review
Medical Board. Those Rules do not
envisage or contemplate a challenge to
those reports based upon reports and
opinions
privately
obtained
by
candidates. Permitting such a course of
action would not only be contrary to the
Rules which apply and bind the candidate
but
also
result
in
derailing
the
recruitment process itself."

28. Now the case of the petitioner is
analyzed in the light of Rule 15(g) of
Rules, 2015 read with Appendix 3 and on
the anvil of principles of law propounded
by this Court in the aforesaid cases. In the
present case, it is not in dispute that the
petitioner has been found medically unfit
by the Medical Board constituted by the
Appointing
Authority.
The
petitioner,
thereafter, submitted representation against
his rejection by the Medical Board, and the
petitioner was sent for the re-medical
examination before the Review Medical
Board. The Review Medical Board also
concurred with the opinion of the Medical
Board.

29. The material which has been
placed by the learned counsel for the
petitioner is the report of Dr. Ashwani
Kumar, ENT Specialist, and Government
District Hospital, Etah to contend that the
report of the Medical Board, as well as
Review Medical Board, is not correct.
There is no pleading in the writ petition as
to how the reports of two doctors procured
by the petitioner are authentic and correct
to create a doubt about the opinion of the
Medical Board and Review Medical Board
declaring the petitioner medically unfit.

30. At this point, it is worth
mentioning that legislature has taken due
care that Medical Board should conduct the
medical examination fairly without any
bias. To ensure fairness in the medical
examination, it is provided in paragraph 4
of Appendix 3 that members of the Medical
Board, if found to have given wrong
reports willfully, will be liable for criminal
proceedings. As the legislature has taken
due care that Medical Board should
conduct the medical examination of a
candidate fairly, it would be unjust to doubt
the veracity and authenticity of the report
9 All Ankit Kumar Vs. State of U.P. & Ors.
1165
of the Medical Board as well as Review
Medical Board declaring the petitioner
medically unfit on the basis of prescription
of an outside Doctor produced by the
petitioner.

31 . Further, the law enunciated by this
Court, as noted above, has consistently held
that the opinion given by the Medical Board
as well as Review Medical Board should not
be taken lightly and should be given due
credence and it should not be annulled or set
aside on the basis of the report of some
private doctor or by a government hospital
obtained by a candidate from outside. If the
report of the private doctor or from any
Government Hospital is relied upon to doubt
the veracity of the opinion of the Medical
Board, that would derail the selection
process, and if such process is allowed to be
continued, it would be very difficult for the
recruiting body to bring the selection process
to the logical end.

32. Further, it is also pertinent to
mention that in the absence of any material
on record to substantiate that the private
doctor or doctor of a government hospital
who investigated the petitioner had adopted
the correct process to conclude that the
petitioner does not suffer any disability, it
would be improper and unwarranted to
doubt the report of the Medical Board and
Review Medical Board by relying upon the
report obtained by a candidate from
outside. If such a process is adopted, that
would not only derail the selection process
but would also cast suspicion on the
selection process.

33. Thus, in this view of the fact, this
Court believes that unless and until the
candidate demonstrates by placing genuine
and authentic material that the opinion of
the Medical Board or Review Medical
Board is erroneous or capricious or vague
and smacks of malafide, the Court should
refrain from interfering with the opinion of
Medical Board and Review Medical Board
which is a body constituted of experts to
assess the fitness of candidate as per the
norms and standards prescribed in respect
of fitness of a candidate who is supposed to
work in the police force.

34. It is no doubt true that this Court
has power under Article 226 of the
Constitution of India to interfere with the
opinion of the Medical Board or Review
Medical Board, but such power has to be
exercised cautiously and sparingly in
exceptional circumstances only in a given
case where it is demonstrated that the
opinion of the Medical Board or Review is
palpably erroneous.

35. In the case in hand, there is no
such material placed by the learned counsel
for the petitioner to doubt the correctness of
the opinion of the Medical Board and
Review Medical Board.

36. So far as the reliance placed by
the learned counsel for the petitioner on an
interim order passed by this Court, it is
worth noticing that the interim order has
not considered any of the aforesaid
judgments on the said issue.

37. Further, the judgment of this
Court in Special Appeal Defective No.639
of 2020 has also not noticed any of the
aforesaid judgments dealing with the issue
at hand. The perusal of the said judgment
does not disclose that it has laid down any
law. The said judgment has been rendered
in the peculiar facts and circumstances,
therefore, the judgment of this Court in
Special Appeal Defective No.639 of 2020
does not come in aid to the petitioner.
1166 INDIAN LAW REPORTS ALLAHABAD SERIES

38. Thus, for the reasons given above,
the writ petition lacks merit and is
accordingly, dismissed with no order as to
costs.
----------
(2021)09ILR A1166
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 7755 of 2021

Sushil Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shantanu Khare, Sri Siddharth Khare,
Sri Alok Khare

Counsel for the Respondents:
C.S.C., Sri Arun Kumar

A. Service Law - Appointment - U.P.
Intermediate
Education
Act,
1921
-
Chapter XII, Regulation 20 - Where the
petitioner has filled in wrong marks to
secure selection anyhow, his candidature
deserves to be rejected. (Para 22)

Object of awarding grace marks - The
award of grace marks is in the nature of a
concession, and there can be no doubt that it
does result in diluting academic standards. The
object underlying the grant of grace marks is to
remove the real hardship to a candidate who
has otherwise shown good performance in the
academic field but is losing one year of his
scholastic career for the deficiency of a mark or
so in one or two subjects, while on the basis of
his overall performance in other subjects, he
deserves to be declared successful. (Para 15)

However, a rule for the award of grace
marks must be construed strictly so as to
ensure that the minimum standards are
not allowed to be diluted beyond the limit
specifically laid down by the appropriate
authority. It is only in a case where the
language of the statute is absolutely clear that
the claim for the award of grace marks can be
sustained. (Para 15)

The grace marks are only notional and are
not added in the aggregate to change the
percentage
-
The
contention
of the
petitioner that Regulation 20 of Chapter
XII of the Act, 1921 does not put any bar
of adding grace marks awarded to the
petitioner in the actual marks obtained by
him is misconceived as the purpose of
awarding grace mark to a candidate is to give
him the benefit of promotion in the next class.
The grace marks have not been secured by the
petitioner on merit and therefore, they cannot
be included in the actual marks obtained by him
in the subjects in which the grace mark has
been awarded to him. Moreover, petitioner
never objected the Board for not including the
grace marks awarded to him, therefore, he
cannot be allowed to raise this contention at this
stage that the Board has committed an error.
(Para 13, 14, 16)

Contention of the petitioner that the
advertisement does not stipulate that
grace marks are to be excluded while
filling total marks secured by a candidate
is misconceived for two reasons; there is no
pleading in the writ petition w.r.t the said
contention nor the advertisement has been
enclosed by the petitioner with the writ petition
to buttress the aforesaid submission. Secondly,
the grace marks are notional and have been
awarded with an object that a candidate should
not lose one year. (Para 23)

The petitioner has not stated about the quality
point marks secured by the last selected
candidate. Strangely, the petitioner without
knowing the actual quality point marks
secured by the last selected candidate has
made the statement that the petitioner's
aggregate is much more than the last
selected candidate. (Para 17 to 21)

Writ petition dismissed. (E-4)

Precedent followed: