# Diwakar Paswan v. The State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 192
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-12
- **Case number:** Writ A No. 14444 of 2020
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/diwakar-paswan-v-the-state-of-u-p-ors-46731
- **Pages:** 6

## Headnote

Law
-
Recruitment
for
Constable - Medical fitness - Opinion of
Medical Board and Review Medical Board
- Interference - Contrary opinion of
Doctor - Judicial Review - Scope - Held,
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
- Rules do not envisage or contemplate a
challenge to those reports based upon
reports and opinions privately obtained by
candidates - 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. (Para 10 and 11)
B.
Service
Law
-
Recruitment
for
Constable - Medical fitness - Opinion of
2 All. Diwakar Paswan Vs. The State of U.P. & Ors.
193
Medical Board and Review Medical Board
- When is liable to be assailed and
interfered with - High Court indicated
three exceptions when opinion of Medical
Board can be challenged and interfered
with - These exceptions are : 1. Mala fide,

## Text

192 INDIAN LAW REPORTS ALLAHABAD SERIES

24.

In
the
present
case
the
respondents are not shown to have taken
any decision holding a Graduate degree in
English Language and Literature as being
equivalent or equipping a holder of either
of those qualifications with an identical
knowledge set. The Master's degree in
English Literature has also not been
established as having been obtained in the
"same line of progression". The Court even
otherwise and upon applying the test of
reasonable prudence fails to discern any
manifest or patent fallacy if it be asserted,
as it has by the State, that the study of
English Language and Literature is the
pursuit of two separate or distinct subjects
so as to hold in favour of the petitioner
even in the absence of a definitive decision
taken by the respondents in that respect.

25. The Court also fails to find any
justification to interfere with the selection
process bearing in mind firstly the nature of
reliefs that are claimed and secondly since
the petitioners failed to initiate any
proceedings requiring a decision to be
taken by the respondents on the question of
eligibility prior to commencement of the
recruitment process. In any case, the
petitioners did not rest their candidature on
any preexisting executive decision holding
a Bachelors degree in English Language to
be equivalent to that of English Literature.
The asserted eligibility of the petitioners in
light of they having pursued a course of
English Literature at the Master's level
stands settled in light of the authoritative
pronouncement of the Full Bench in
Deepak Singh as well as of this Court in
Asheesh Singh.

26. The reasons assigned in those
decisions
conclusively
answer
the
submissions advanced on this issue against
the petitioners.

27. In view of the aforesaid the writ
petition fails and shall stand dismissed.
----------
(2021)02ILR A192
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ A No. 14444 of 2020

Diwakar Paswan ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Devesh Mishra, Sri Atipriya Gautam, Sri
Vijay Gautam (Senior Adv.)

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Recruitment
for
Constable - Medical fitness - Opinion of
Medical Board and Review Medical Board
- Interference - Contrary opinion of
Doctor - Judicial Review - Scope - Held,
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
- Rules do not envisage or contemplate a
challenge to those reports based upon
reports and opinions privately obtained by
candidates - 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. (Para 10 and 11)
B.
Service
Law
-
Recruitment
for
Constable - Medical fitness - Opinion of
2 All. Diwakar Paswan Vs. The State of U.P. & Ors.
193
Medical Board and Review Medical Board
- When is liable to be assailed and
interfered with - High Court indicated
three exceptions when opinion of Medical
Board can be challenged and interfered
with - These exceptions are : 1. Mala fide,
2. Contrary to the standard prescribed,
and
3.
Other
judicially
manageable
parameters. (Para 10)
Writ Petition dismissed. (E-1)
Cases relied on :-
1. St. of U.P. Vs Rahul, 2016 (3) ADJ 327
2. Manish Kumar Vs St. of U.P., 2020 SCC
OnLine ALL 923
3. Prakash Singh Vs St. of U.P., 2018 SCC
OnLine ALL 5517
4. Writ Petition (C) 10783/2020, Km Priyanka Vs
U.O.I., decided by Delhi High Court on 21
December 2020
(Delivered by Hon'ble Yashwant Verma, J.)

1. Heard learned counsel for the
petitioner and Sri Piyush Shukla, learned
Additional Chief Standing Counsel who
appears for the State respondents.

2. This petition has been preferred
seeking the following reliefs:-

"(i) Issue a writ, order or
direction, in the nature of certiorari, calling
the record of the case and quashing the
medical
examination
result
of
the
petitioner, dated 07/09/2020 & 09/09/2020
(which has not been served upon the
petitioner and it was orally informed that
the petitioner is medically unfit having
"Hydrocele Testicle") declared by the
Medical Board, for the post of Constable
Civil Police and Constable PAC, Direct
Recruitment - 2018-II, pursuant to the
Advertisement dated 16/11/2018 and in
pursuance of the select list issued vide
Notification dated 02/03/2020.

(ii) Issue a writ, order or direction,
in the nature of mandamus, commanding the
Respondent
Authorities,
treating

the
petitioner as medically fit in the medically
examination for the post of Constable Civil
Police
and
Constable
PAC,
Direct
Recruitment - 2018-II, pursuant to the
Advertisement dated 16/11/2018 and select &
appoint him finally for the said post, in
pursuance of the select list, issued vide
Notification dated 02/03/2020.

(iii) Issue a writ, order or direction,
in the nature of mandamus, directing the
Respondent Authorities, to declare the
petitioner as a selected candidate finally and
appoint him on the post of Constable, and
send him necessary training for the post of
Constable Civil Police and Constable PAC,
Direct Recruitment - 2018-II, pursuant to
the Advertisement dated 16/11/2018 and in
pursuance of the select List issued vide
Notification dated 02/03/2020"

3. The petitioner who had participated
in a recruitment exercise initiated by the
respondents for appointment on the post of
Constable in the Civil Police and PAC has
been declared medically unfit. That opinion
which was formed initially by the Medical
Board constituted by the respondents, was
affirmed by the Review Medical Board.
Upon
the
petitioner
being
declared
medically unfit, his candidature was
rejected by the respondents. The sole
ground on which the aforesaid medical
opinion is challenged is a certificate
obtained
by
the
petitioner
from
a
Government Hospital on the basis of which
it is contended that the decision of the
respondents is liable to be interfered with
and set aside.

4. The Court finds itself unable to
countenance
the
submission
for
the
following reasons.
194 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The parameters of judicial review
in respect of the opinion formed by a
Medical Board was duly enunciated by the
Court in State of U.P. Vs. Rahul1. In
Rahul, the Division Bench observed thus:-

"This Court in previous decisions
has emphasized the need to preserve the
sanctity of the recruitment process and of
the care and circumspection which has to
be exercised before the findings of an
expert medical Board constituted by the
authorities are interfered with in writ
proceedings. Undoubtedly, the powers of
the Court under Article 226 of the
Constitution are wide enough to issue such
a
direction
in
an
appropriate
case.
However, such directions cannot be issued
merely on the basis of a request made in
that behalf before the Court.

In a recent judgment of this Court
in Union of India through Ministry of
Railways vs. Parul Punia2, this Court has
emphasized the need for caution when
candidates seek to question the correctness
of the findings of a medical Board
constituted under the recruitment process
adopted by the authorities of the State, on
the basis of a report obtained by the
candidates. The Division Bench observed
as follows:

"...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..."

Dealing with the parameters of
the writ jurisdiction in such cases, the
Division Bench observed thus:

"...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
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."

6. More recently reiterating the
principles enunciated in Rahul, another
Division Bench of the Court in Manish
Kumar Vs State of U.P.2 observed:

16. We may observe that although
the powers of the Court under Article 226
are wide enough to issue directions in
appropriate cases but such powers are
required to be wielded with caution and
circumspection. Matters relating to the
medical evaluation of candidates in a
recruitment
process
involve
expert
2 All. Diwakar Paswan Vs. The State of U.P. & Ors.
195
determination
and
the
Court
should
exercise caution in supplanting the process
adopted by the recruiting agency and
substituting it by a Court mandated further
medical evaluation.

17. Any such exercise in acceding
to requests of candidates who are not found
to be medically fit for reassessment on the
basis of procedures other than those
envisaged by the recruiting agency under the
relevant rules would result in the recruitment
process
being
derailed,
which
would
ordinarily be not permissible.

18. In a case where the 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, solely on the
basis of a claim sought to be set up by a
prospective candidate.

19. In the instant case, the writ
petitioner has been found medically unfit by a
duly constituted Medical Board and the said
finding with regard to his unsuitability on
medical grounds has been affirmed by the
Appellate Medical Board, and further the
opinion of a private medical practitioner
which was sought to be relied upon in the
writ petition also does not contain any
specific opinion that the petitioner was not
suffering from the ailment on the basis of
which he had been declared unfit by the
Medical Board.

20.
In
the
aforementioned
circumstances, we are of the view that no
further indulgence is required to be granted
to the appellant-writ petitioner in this
regard. This is, more so, since 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.

21. No material has been placed
on record, or otherwise referred, to suggest
that the opinion of the Medical Board or
the Appellate Medical Board could in any
manner be said to be casual, inchoate,
perfunctory or vague. We are therefore of
the view that the Medical Board being an
expert body, its opinion is entitled to be
given due weight, credence and value.

22. A similar view has been taken
in recent judgments of this Court in Vivek
Kumar v. State of U.P.1 and Md. Arshad
Khan v. State of U.P.2 wherein it was held
that matters relating to medical evaluation
of candidates in a recruitment process
involve expert determination and it may not
be desirable to supplant the procedure
prescribed therefor as laid down under the
relevant recruitment rules and taking any
other view may have the effect of derailing
the recruitment process.

7. Dealing with an identical challenge
this Court in Prakash Singh Vs. State of
U.P.3 held:

"The petitioner essentially calls
upon the Court to rule on and evaluate the
correctness of the reports submitted by
experts in their fields. These submissions
and reliefs have evidently been sought and
addressed without bearing in mind the
contours of the writ jurisdiction. The
opinion of a Medical Board is the outcome
of an evaluation by experts in the subject.
Except in exceptional situations such as
where a finding of unfitness is returned in
violation or disregard of the standards
prescribed or on grounds which may call
upon this Court to consider the correctness
of the opinion on a legal plain, it would be
wholly inappropriate for this Court to either
interfere with the same or substitute its own
opinion with respect to the medical fitness
of a particular candidate. Treading this path
196 INDIAN LAW REPORTS ALLAHABAD SERIES
may also cause serious prejudice and
jeopardise the recruitment process itself.
The Court is constrained to enter this note
of caution conscious of its own limitations
with respect to adjudging the medical
fitness or otherwise of a particular
candidate. In the ultimate analysis, it would
be pertinent to emphasise that such requests
must be entertained with due care and
circumspection."

8. The Delhi High Court in a recent
decision handed down in the matter of Km
Priyanka Vs. Union of India4 cautioned
against interfering with the opinion formed
by medical boards constituted for selection
of members of the armed forces on the
strength of certificates issued by private or
civilian doctors in the following terms: -

"8. We have on several occasions
observed that the standard of physical
fitness for the Armed Forces and the Police
Forces is more stringent than for civilian
employment. We have in Priti Yadav Vs.
Union of India 2020 SCC Online Del
951;Jonu Tiwari VS. Union of India 2020
SCC Online Del 855; Nishant Kumar Vs.
Union of India SCC Online Del 808; and
Shravan Kumar Rai Vs. Union of India
2020 SCC Online Del 924 held that once
no mala fides are attributed and the doctors
of the Forces who are well aware of the
demands of duties of the Forces in the
terrain in which the recruited personnel are
required to work, have formed an opinion
that the candidate is not medically fit for
recruitment, opinion of private or other
government doctors to the contrary cannot
be accepted inasmuch as the recruited
personnel are required to work for the
Forces and not for the private doctors or the
government hospitals and which medical
professionals are unaware of the demands
of the duties of the Forces."

9. Although learned counsel for the
petitioner has placed reliance upon certain
interim orders passed by learned Judges of
the Court and which stand appended as
Annexure 7 to the writ petition, the Court
notes that none of those interim orders
notice or deal with the principles as
elucidated by the Division Bench in Rahul
or the decisions in Manish Kumar and
Prakash Singh noticed above.

10. 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.

11. 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
2 All. Narendra Kumar Tripathi Vs. State of U.P. & Ors.
197
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.

12. For all the aforesaid reasons, the
Court finds no ground to issue the writs as
prayed for.

13. The writ petition is dismissed.
----------
(2021)02ILR A197
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2021

BEFORE

THE HON'BLE YASHWANT VERMA, J.

Writ A No. 15217 of 2020

Narendra Kumar Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Krishna Datt Tiwari

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

A.
Service
Law
-
Appointment
-
Obtained by using the forged marksheet
- Recovery of Emoluments - Validity -
Obtaining the employment under theSt.
by practicing fraud is undisputed -
Appointment found nullity from its very
inception - Effect - Held, Petitioner has
not only sullied a recruitment process
initiated for the purposes of offering
positions in public service, denied a
rightful claim of another to secure
employment
under
theSt.,
but
also
illegally
drawn,
used
and
retained
moneys from public funds - Order for
recovery of all emoluments merit no
interference. (Para 9, 10 and 19)
B. Service Law - Appointment void ab
initio - Practice of fraud and fabrication -
No disciplinary enquiry - non-compliance
of Principle of Natural Justice - Effect -
Held, where the appointment is alleged to
have
been
secured
by
fraud
or
misrepresentation,
the
normal
rules
governing the conduct of disciplinary
proceedings were not liable to be followed
- Since the termination is not on account
of a misconduct committed during the
course of employment. All that is required
in such a situation is to place the
employee on notice and comply with the
fundamental principles of natural justice.
(Para 16)
Writ Petition dismissed. (E-1)
Cases relied on:-
1. Writ - A No.8657 of 2020, Abhiram Vs St. of
U.P. & 3 ors. decided on 02.11.2020
2. Special Appeal Defective No.110 of 2014,
Smt. Parmi Maurya Vs St. of U.P. & 2 ors.
decided on 31.01.2014
3. Secretary, St. of Karn. & ors. Vs Uma Devi &
ors., (2006) 4 SCC 1
4. Punjab Urban Planning & Development
Authority Vs Karamjit Singh, (2019) 16 SCC 782
5.St. of Bihar Vs Kirti Narayan Prasad, (2019) 13
SCC 250
6. Raj Kumar Saxena Vs Basic Shiksha Parishad,
2019 SCC OnLine ALL 4256
7. Narendra Kumar Gond Vs St. of U.P., 2018
SCC OnLine ALL 5716
8 Vinay Kumar Singh v. St. of U.P., 2012 SCC
OnLine All 4171

(Delivered by Hon'ble Yashwant Verma, J.)

1. Heard learned counsel for the
petitioner and Sri Arun Kumar, learned
counsel who appears for the respondents.

2. The petitioner is aggrieved by the
orders of 3 July 2020 and 7 October 2020