# Rupesh Kumar v. Union of India & Ors

- **Citation:** (2020) 9 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-17
- **Case number:** Writ -A No. 5049 of 2020
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rupesh-kumar-v-union-of-india-ors-46069
- **Pages:** 9

## Headnote

Law-Recruitment
ProcessReview Medical Examination-Recruitment
Scheme: Clause 8, 15-Jurisdiction of
Allahabad High Court in the present
matter-Under the Scheme of recruitment, the
conduct
of
computer
based
examination,
preparation of merit list and force allocation of
selected candidates was handled by the Staff
Selection Commission (the regional office of
which is situated at Allahabad and it exercised
jurisdiction over centres located in State of
Bihar), while other functions were performed by
CAPFS/MHA but Clause 15 of the advertisement
which defines court's jurisdiction does not make
any distinction based
on the stages of
recruitment or allocation of different functions to
different bodies. The phrase "any dispute in
regard to this recruitment" is wide enough
to
take
within
its
purview
disputes
pertaining to all stages of recruitment
irrespective of the body entrusted with
conducting or holding any particular stage
of recruitment. (Para 8)
68 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Recruitment Scheme: Clause 9E -
Review
Medical
Examination
-
The
requirement of filing medical certificate
alongwith the memo of appeal should be
interpreted keeping in mind the object
with which the said provision has been
incorporated.
It
should
not
be
overstretched, lest the very purpose of
providing
remedy
of
review
medical
examination may stand defeated. (Para 14)

Petitioners
applied
for
review
medical
examination along with fitness certificate of
medical practitioners from Government hospitals
as per the requirements of Clause 9E. The
refusal to entertain appeals in all the cases was
on analogous ground that the medical fitness
certificate enclosed with the appeal was not by
the concerned field specialist. (Para 2, 9)

Clause 9E only contemplates that the medical
certificate to be annexed with the appeal should
be by the medical officer from Government
District Hospital or above. It does not mention
that the medical officer issuing the certificate
should be a specialist in the field. Such
requirement came to be incorporated for the
first time in Form No. 3 at the place where the
doctor issuing the certificate has to sign,
mention his name, and put his seal. (Para 13,
14)

Court observed that the medical practitioner
was
competent
enough
to
examine
the
petitioners and certify that they were not
suffering from alleged ailment. Under the
recruitment scheme, the only evidentiary value
of his certificate is in formation of prima facie
opinion that there could be an error of judgment
on part of the medical officer who examined the
candidate in the first instance to warrant
acceptance of the appeal for review medical
examination of the petitioners. In the review
medical examination, the petitioners will be
subjected to medical examination by expert
doctors. (Para 15)

Therefore, in case the certificates furnished by
the petitioners are relied upon at this stage, the
respondents would not suffer except that they
shall have to hold a review medical examination.
On the other hand, if the petitioners really do
not suffer from any ailment/shortcoming, as
alleged, but their appeal for review medical
examination is rejected at the very threshold on
the above ground, they would suffer irreparable
loss and injury. (Para 15)

Writ Petitions allowed. (E-4)

## Text

9 All. Rupesh Kumar Vs. Union of India & Ors.
67
submitted online mode were accepted by
the
Uttar
Pradesh
Public
Service
Commission for their appearing in the
aforesaid examination.

18. The examination is now scheduled to
be held on 16.8.2020 and all the formalities of
conducting the same is complete and admit
cards etc. have also been issued to the
candidates
for
appearing
in
the
said
examination by the UPPSC and at this last
juncture, in my humble opinion, it would not be
proper for this Court to interfere in the present
writ petition granting any indulgence to the
petitioner for allowing them to deposit the fee
by online mode for appearing in the
examination
for
recruitment
of
Block
Education Officer in the State of U.P. which is
to be conducted on a large scale and large
number of candidates have submitted their
online form in three stages timely as per the
advertisement issued for the said recruitment
process would definitely cause great hardship
to the other candidates and dislocate the entire
process of holding examination. Moreover,
considering the proposition of law as has been
settled by this Full Bench decision in the case
of Rajendra Patel (Supra) and further the
order passed by the co-ordinate Benches in the
case of Sachin Kumar (Supra) and Daya
Ram Yadav (Supra) which were dismissed
on 18.1.2020 and 7.2.2020 respectively of the
candidates with respect to the identical
controversy which remained unchallenged by
the said candidates till date in the Special
Appeal before this Court or any other higher
forum, therefore, it is also not possible for this
Court to consider the case of the petitioners
sympathetically as has been prayed by the
Counsel for the petitioners.

19. In view of the foregoing
discussions, no interference is called for by
this Court in exercise of its power under
Article 226 of the Constitution of India.

20. The writ petition lacks merit and
the same is accordingly dismissed.

21. No order as to costs.
----------
(2020)09ILR A67
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2020

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ -A No. 5049 of 2020
connected with
Writ -A No. 5181 of 2020 and other cases

Rupesh Kumar ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Avneesh Tripathi, Sri Kranti Kiran
Pandey

Counsel for the Respondents:
A.S.G.I.

A.
Service
Law-Recruitment
ProcessReview Medical Examination-Recruitment
Scheme: Clause 8, 15-Jurisdiction of
Allahabad High Court in the present
matter-Under the Scheme of recruitment, the
conduct
of
computer
based
examination,
preparation of merit list and force allocation of
selected candidates was handled by the Staff
Selection Commission (the regional office of
which is situated at Allahabad and it exercised
jurisdiction over centres located in State of
Bihar), while other functions were performed by
CAPFS/MHA but Clause 15 of the advertisement
which defines court's jurisdiction does not make
any distinction based
on the stages of
recruitment or allocation of different functions to
different bodies. The phrase "any dispute in
regard to this recruitment" is wide enough
to
take
within
its
purview
disputes
pertaining to all stages of recruitment
irrespective of the body entrusted with
conducting or holding any particular stage
of recruitment. (Para 8)
68 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Recruitment Scheme: Clause 9E -
Review
Medical
Examination
-
The
requirement of filing medical certificate
alongwith the memo of appeal should be
interpreted keeping in mind the object
with which the said provision has been
incorporated.
It
should
not
be
overstretched, lest the very purpose of
providing
remedy
of
review
medical
examination may stand defeated. (Para 14)

Petitioners
applied
for
review
medical
examination along with fitness certificate of
medical practitioners from Government hospitals
as per the requirements of Clause 9E. The
refusal to entertain appeals in all the cases was
on analogous ground that the medical fitness
certificate enclosed with the appeal was not by
the concerned field specialist. (Para 2, 9)

Clause 9E only contemplates that the medical
certificate to be annexed with the appeal should
be by the medical officer from Government
District Hospital or above. It does not mention
that the medical officer issuing the certificate
should be a specialist in the field. Such
requirement came to be incorporated for the
first time in Form No. 3 at the place where the
doctor issuing the certificate has to sign,
mention his name, and put his seal. (Para 13,
14)

Court observed that the medical practitioner
was
competent
enough
to
examine
the
petitioners and certify that they were not
suffering from alleged ailment. Under the
recruitment scheme, the only evidentiary value
of his certificate is in formation of prima facie
opinion that there could be an error of judgment
on part of the medical officer who examined the
candidate in the first instance to warrant
acceptance of the appeal for review medical
examination of the petitioners. In the review
medical examination, the petitioners will be
subjected to medical examination by expert
doctors. (Para 15)

Therefore, in case the certificates furnished by
the petitioners are relied upon at this stage, the
respondents would not suffer except that they
shall have to hold a review medical examination.
On the other hand, if the petitioners really do
not suffer from any ailment/shortcoming, as
alleged, but their appeal for review medical
examination is rejected at the very threshold on
the above ground, they would suffer irreparable
loss and injury. (Para 15)

Writ Petitions allowed. (E-4)

(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. This batch of writ petitions raises
common questions of facts and law and
with consent of learned counsel for the
parties, the petitions were heard together
and are being decided by this common
judgement.

2. The petitioners had appeared in the
recruitment for the post of Constables (GD)
in CAPFs, NIA, SSF and Rifleman (GD) in
Assam Rifles Examination, 2018. Under
the recruitment scheme, the candidates
were to apply online. It was mandatory to
indicate in the online application form
Centre from where the candidate desires to
take
examination.
The
petitioners
accordingly applied online and in their
application form, they preferred to appear
from Centres located in the State of Bihar.
This was apparently for the reason that all
the petitioners are domicile of the State of
Bihar. The job of holding a computer based
examination for shortlisting the candidates
was assigned to the Staff Selection
Commission. Under Clause 8 of the
Recruitment Scheme, the entire State of
Bihar and Uttar Pradesh fell under the
jurisdiction of the Central Region of the
Staff Selection Commission. It is clear
from the document filed as Annexure RA-1
to Writ Petition No.5049 of 2020 that the
Central Region fell under the jurisdiction of
the Regional Office of the Staff Selection
Commission, Allahabad (Prayagraj). The
petitioners appeared in the computer based
examination from different centres located
in the State of Bihar. The respondents
9 All. Rupesh Kumar Vs. Union of India & Ors.
69
shortlisted the candidates for next stage of
recruitment based on the scores in the
computer based examination. The petitioners
were successful in proceeding to the next
stage i.e. physical efficiency test/physical
standard test. Those candidates who were
successful in clearing these stages were
shortlisted for detailed medical examination.
The petitioners being successful therein were
called for detailed medical examination by a
medical board. The petitioners duly got
themselves medically examined by the
medical board. However, all of them were
informed by the Chief Medical Officer (SG)/
Commandant that they were found unfit due
to various reasons and if they wish to
challenge
the
findings
of
medical
examination, it was open to them to apply for
review medical examination in enclosed
Form No.2 alongwith demand draft of Rs.25.
The application should be accompanied by
medical certificate from medical practitioner
(specialist medical officer of Government
District Hospital and above) as per Form
No.3. All the petitioners applied for review
medical
examination
alongwith
fitness
certificate of medical practitioners from
Government hospitals. All the appeals have
been rejected on identical ground "medical
fitness certificate of concerned field specialist
not attached". Aggrieved by the stand taken
by the respondents in declining to entertain
their appeal for review medical examination,
the present batch of petitions has been filed.
The petitioners have sought quashing of the
communication informing them that their
appeal for review medical examination could
not be entertained for the above reason and
have
also
prayed
for
a
mandamus
commanding the respondents to conduct their
review medical examination.

3. Learned counsel for Union of India
raised a preliminary objection to the effect
that this Court lacks territorial jurisdiction
to entertain these petitions. It was urged
that no part of cause of action has arisen
within the territorial limits of this Court.
The petitioners are residents of the State of
Bihar; they appeared in the computer based
examination from centres located in the
State of Bihar; their physical standard test
and physical efficiency test were also held
at various centres situated in the State of
Bihar; their detailed medical examination
was held at CRPF Mokama Ghat, Group
Centre, CRPF, Mokama Ghat, District
Patna, Bihar and consequently, the Patna
High Court alone will have jurisdiction in
the matter.

4. On the other hand, Shri Avneesh
Tripathi, learned counsel for the petitioners
submitted that since the petitioners had
participated in the recruitment exercise held
at various centres in the State of Bihar and
consequently, the courts/tribunals having
jurisdiction over the place of concerned
Regional Office of the Commission i.e. the
office of the Staff Selection Commission at
Allahabad (Prayagraj) alone will have
jurisdiction in the matter as contemplated
by Clause 15 of the Recruitment Scheme.
Clause 15 is extracted below:-

"15. COURTS JURISDICTION

Any dispute in regard to this
recruitment
will
be
subject
to
courts/tribunals having jurisdiction over
the place of concerned Regional/SubRegional Office of the Commission where
the candidate has appeared for the
Computer Based Examination."

5. In rejoinder, learned counsel for the
Union of India placed reliance on salient
feature number nine of the Recruitment
Scheme, which reads as follows:-

"(ix)
Court
cases/RTI/Public
Grievances
relating
to
Notice
of
70 INDIAN LAW REPORTS ALLAHABAD SERIES
Examination, conduct of Computer Based
Examination, preparation of merit list and
force allocation of selected candidates will
be handled by SCC and those relating to all
other issues i.e. Scheme of examination,
vacancies,
conduct
of
PET/PST,
DME/RME, Document Verification etc. will
be handled by coordinating CAPFs/MHA."

6. He submitted that since the Staff
Selection Commission was entrusted with
the work of conducting computer based
examination, preparation of merit list and
force allocation of selected candidates,
while all other issues were handled by
coordinating CAPFs/MHA, therefore, it
was the State of Bihar where other stages
of recruitment were held, with which the
petitioners feel aggrieved, which would
determine the jurisdiction in the matter.

7. A plain reading of Clause 15 of the
Recruitment Scheme, which defines courts
jurisdiction, reveals that any dispute in
regard to the recruitment is subject to
Courts/Tribunals having jurisdiction over
the place of concerned Regional/Subregional office of the Commission from
where the candidate had appeared for the
computer based examination. Indisputably,
the petitioners appeared in the computer
based examination from different centres
located in the State of Bihar. The Regional
Office of the Staff Selection Commission
situated at Allahabad (Prayagraj) exercised
jurisdiction over these centres located in
the State of Bihar. In this regard, it is
worthwhile to extract the relevant part of
Clause 8 of the Recruitment Scheme:-

"8. Centres of Examination:

A candidate must indicate the
Centre(s) in the online Application Form in
which
he/she
desires
to
take
the
examination.
Details
about
the
Examination Centres and Regional Offices
under
whose
jurisdiction
these
Examination Centres are located are as
follows:
S.No.
Examinati
on
Centres &
Centre
Code
SCC Region
and
States/UTs
under
the
jurisdiction
of the Region
Address
of
the
Regional
Offices/Website
1.
Agra
(3001),
Allahabad
(3003),
Bareilly
(3005),
Gorakhpu
r (3007),
Kanpur
(3009),
Lucknow
(3010),
Meerut
(3011),
Varanasi
(3013),
Bhagalpu
r (3201),
Muzaffarp
ur (3205),
Patna
(3206)
Central
Region (CR)/
Bihar
and
Uttar
Pradesh
Regional
Director
(CR),
Staff
Selection
Commission, 21-23
Lowther
Road,
Allahabad,
Uttar
Pradesh-211002.
(https://www.ssccr.org)

8. No doubt, under the scheme of
recruitment, the conduct of computer based
examination, preparation of merit list and
force allocation of selected candidates was
handled by the Staff Selection Commission,
while other functions were performed by
CAPFS/ MHA but Clause 15 of the
advertisement
which
defines
courts
jurisdiction does not make any distinction
based on the stages of recruitment or
allocation of different functions to different
bodies. The phrase "any dispute in regard
to this recruitment" is wide enough to take
within its purview disputes pertaining to all
stages of recruitment irrespective of the
body entrusted with conducting or holding
any
particular
stage
of
recruitment.
Resultantly, the submission based on
division of functions amongst different
9 All. Rupesh Kumar Vs. Union of India & Ors.
71
bodies in conducting different stages of
recruitment has no force nor the submission
based on it relating to ouster of this Court's
jurisdiction.

9. Reverting to the merits of the case,
the short question which arises for
consideration is whether the stand taken by
the respondents in refusing to accept the
appeal
for
holding
review
medical
examination is legally sustainable or not.
As noted above, the refusal to entertain
appeals in all the cases was on analogous
ground that the medical fitness certificate
enclosed with the appeal was not by the
concerned field specialist.

10. It is not in dispute that all the
petitioners had alongwith their appeal
annexed medical certificates issued in
prescribed Form 3 by the doctors of the
government
hospitals.
The
certificate
specifically states that the issuing authority
(Doctor) was aware of the fact that the
candidate had been rejected by the Medical
Board of the respondent. The certificate
also mentions that in the opinion of the
issuing authority (Doctor) there was
possibility of an error of judgment on part
of the Medical Board which examined the
candidate in the first instance. The details
of the certificates furnished by the
petitioner are as follows: -

Writ Petition No.5049 of 2020
Rupesh Kumar Vs. Union of India and
others:

The
petitioner
was
declared
medically unfit on the ground that he was
suffering
from
hypertension
and
overweight. The petitioner filed certificate
issued by Dr. Syed Naushad Ahmad,
MBBS, MS certifying that he examined the
petitioner and did not find him suffering
from any such disease. He held the post of
Deputy Superintendent, Sadar Hospital,
Jamui and issued the certificate being the
medical
officer
of
the
concerned
government Hospital.

Writ Petition No.5558 of 2020 Varun
Kumar Vs. Union of India and others:

The
petitioner
was
declared
suffering from defective distant vision, bow
legs,
B/L
tecticular
swelling
and
hemorrhoids. The petitioner got his eyes
tested by Dr. Thanish Kumar of Sadar
Hospital, Jamui. He issued a certificate to
the effect that his distant vision is 6/6. He
also got himself examined by Dr. Rajiv
Anand,
MS
Orthopaedics,
Associate
Professor, Department of Orthopaedics,
Patna Medical College, who certified that
the petitioner was not suffering from
bowlegs and the error of judgement was
due to X-ray values. The petitioner also
annexed X-ray report of knee joint B/L..
The Radiologist certified that the study of
knee joint reveals that it is normal in
density and alignment. He also annexed
medical certificate in Form 3 issued by
Syed
Naushad
Ahmad,
Deputy
Superintendent, Sadar Hospital, Jamui
mentioning that the petitioner does not
suffer from any of the ailments/defects on
account
of
which
he
was
declared
medically unfit. The qualification of Dr.
Syed
Naushad
Ahmad,
Deputy
Superintendent is MBBS, MS.

Writ Petition No.5181 of 2020
Chandan Kumar Vs. Union of India:

The
petitioner
was
declared
medically unfit for the reason that he was
suffering from chronic skin infection of the
gluteal region. The petitioner got himself
examined at Patna Medical College by Dr.
Pankaj Kumar Tiwari, Associate Professor
in the Department of Skin, Venreal and
Leprosy. He did not find him suffering
from any such infection. Based on his
report,
Dr.
Syed
Naushad,
Deputy
72 INDIAN LAW REPORTS ALLAHABAD SERIES
Superintendent, Sadar Hospital, Jamui
issued medical certificate in Form 3
certifying that the petitioner does not suffer
from any such infection.

Writ Petition No.5654 of 2020 Bikas
Kumar Sah Vs. Union of India and
others:

The
petitioner
was
declared
medically unfit on the ground that he was
suffering from BN nasal polyp and High
BP Tachycardia. The petitioner got himself
examined by Dr. Dhirendra Prasad Singh,
MBBS, MS, ENT Specialist in Sadar
Hospital, Jamui. The petitioner also got
himself examined by Dr. Syed Naushad
Ahmad, MBBS, MS. He certified that the
petitioner does not suffer from High BP
Tachycardia and that there was an error of
judgement.

11. The provision of review medical
examination is contained in Clause 9E of
the
Recruitment
Scheme,
which
is
reproduced below for ready reference:-

"Review Medical Examination
(RME): Ordinarily there is no right of
appeal
against
the
findings
of
the
Recruiting Medical Officer or Initial
Medical Examination. If any Medical
Certificate is produced by a candidate as a
piece of evidence about the possibility of an
error or judgment in the decision of Initial
Medical Board/ Recruiting Medical Officer,
who had examined him/her in the first
instance i.e. DME, an appeal can be
accepted. Such Medical Certificate will not
be taken into consideration unless it
contains a note by the Medical Officer from
Government District Hospital or above
along with registration no. given by
MCI/State Medical Council, to the effect
that it has been given in full knowledge of
the fact that the candidate has already been
rejected and declared unfit for service by
CAPF Medical Board, or the recruiting
medical officer. If the appeal of a candidate
is accepted by CAPF Appellate Authority,
his/her Review Medical Examination will
be conducted by CAPF RME Board. The
decision of the CAPF's Review Medical
Boards will be final. No appeal will be
entertained against the finding of the
second
medical
i.e.
Review
Medical
Examination."

12. The essential ingredients of
Clause 9E can be summarised thus:-

A- Candidate preferring appeal
had to produce Medical Certificate as a
piece of evidence about the possibility of
an error of judgment in the decision of
Initial Medical Board/Recruiting Medical
Officer, who had examined the candidate in
the first instance.

B- Such medical certificate would
be taken into consideration only if it
contains a note by the medical officer from
Government District Hospital or above
along with registration number given by
MCI/State Medical Council, to the effect
that it has been given in full knowledge of
the fact that the candidate had already been
rejected and declared unfit for service by
CAPF Medical Board, or the recruiting
medical officer.

C- If the appeal of a candidate is
accepted by CAPF Appellate Authority, the
candidate's review medical examination
will be conducted by CAPF RME Board.

D- The decision of the review
medical board would be final.

13. The above provision only
contemplates that the medical certificate to
be annexed with the appeal should be by
the medical officer from Government
District Hospital or above. It does not
mention that the medical officer issuing the
9 All. Rupesh Kumar Vs. Union of India & Ors.
73
certificate should be a specialist in the
field. However, in the communication sent
to the petitioners informing them that they
had been declared medically unfit, it was
mentioned that in the event they apply for a
review medical examination, they were
required to submit medical certificate from
a medical practitioner who should be
specialist medical officer of Government
District Hospital and above as per Form
No.3. A sample Form 3 which is part of
Writ
Petition
No.5049
of
2020
is
reproduced below:-

"FORM No.3 OF CONSTABLE
(GD) EXAM-2018

MEDICAL
FITNESS
CERTIFICATE

Certified that Mrs/Ms. ..... Rupesh
Kumar ... S/o Shri Chandra Dev Sah ..
Age..22.. years, a candidate of Constable
(GD) Exam-2018 in CAPFs whose photo
and thumb impression are appended above
duly attested by me was examined by me at
Hospital .... Sadar Hospital, Jamui.... on
date ...4.2.2020.

2. I the undersigned, have the
knowledge that Mr./Ms.... Rupesh Kumar.....
S/o Sri Chandra Dev Sah... has been
declared Medically Unfit by the Medical
Officer for Constable (GD) Exam 2018 om
CAPFs due to ___HTN over weight____.

3. In my opinion this is an error
of judgment due to following reasons :-
_______Normal B.P.__________ Normal
weight.

After due examination, I declare
him/her medically fit for the said post.

Dated: 4.2.2020

Sd/- illegible

 Signature
& Name with seal of Specialist

 Medical
Officer of concerned field
 Registration NO. 233379

(MCI/State Medical Council)

Designation DS..........

 Name &
Address of Govt. Hospital

(District Hospital and above)

Sadar Hospital Jamui

Sd/ Rupesh Kumar

Signature and name of candidate

(in
presence
of
Medical
practitioner)

Sd/- Upadhikshak, Sadar Aspatal,
Jamui

4.2.2020

Attested by

 Sd/-

Upadhikshak, Sadar Aspatal, Jamui

 4.2.2020

 Signature
& Name with seal of Specialist

 Medical
Officer of concerned field

Note: (1) The findings of the
Medical should be supported by Medical
reports/ documents wherever applicable.

2)
The
Photograph
thumb
impression and signature of the candidates
should be attested by Medical practitioner
giving this Medical fitness Certificate. Unattested forms shall be summarily rejected.

3)
CAPFs
shall
not
be
responsible for postal delay."

14. As noted, the main provision in
the Recruitment Scheme providing for the
remedy of review medical examination
only speaks of medical certificate from
Government District Hospital or above, to
74 INDIAN LAW REPORTS ALLAHABAD SERIES
be annexed with the appeal. The medical
certificate annexed with the appeal shall be
evidence of possibility of an error of
judgment in the decision of initial medical
board/recruiting medical officer, who had
examined the candidate in the first instance.
The doctor issuing the certificate is
required to certify that it is being issued in
full knowledge of the fact that the
candidate had already been rejected and
declared unfit for service by CAPF medical
board, or the recruiting medical officer. He
has to owe full responsibility of the facts
certified by him. The object unambiguously
was to prevent frivolous appeals being
filed. If the documents were found in order,
the
appeal
could
be
accepted.
The
acceptance of the appeal would not mean
that the candidate has been declared or
accepted to be medically fit. It would only
pave way for constitution of a Review
Medical Board by the respondents. The
candidates would thereafter be subjected to
medical examination once again by the
Review Medical Board and only if he is
found fit that he would be moving to the
next stage of recruitment. The requirement
that certificate should be by specialist
medical officer of concerned field came to
be incorporated for the first time in Form
No.3 at the place where the doctor issuing
the certificate has to sign, mention his
name, and put his seal. In my considered
opinion, the requirement of filing medical
certificate alongwith the memo of appeal
should be interpreted keeping in mind the
object with which the said provision has
been incorporated. It should not be
overstretched, lest the very purpose of
providing remedy of review medical
examination may stand defeated.
So
interpreted, I am of the considered view
that the Certificates annexed by the
petitioners alongwith their appeal were
sufficient to entertain the appeals.

15. The submission of learned counsel
for the Union of India that Dr. Syed
Naushad Ahmad, Deputy Superintendent,
Government Hospital, Jamui who certified
that two of the petitioners were not
suffering from High BP/Hypertension was
not competent to issue the same as he is not
a cardiologist, has also no force. The
qualifications of Dr. Syed Naushad Ahmad
are not in dispute. He has done Masters in
Surgery and being a general surgeon in a
government hospital, he was competent
enough to examine the petitioners and
certify that they were not suffering from
hypertension.
Under
the
recruitment
scheme,
as
noted
above,
the
only
evidentiary value of his certificate is in
formation of prima facie opinion that there
could be an error of judgment on part of the
medical
officer
who
examined
the
candidate in the first instance to warrant
acceptance of the appeal for review
medical examination of the petitioners. In
the review medical examination, the
petitioners will be subjected to medical
examination by expert doctors. In case the
petitioners were really not suffering from
the ailments/ shortcomings pointed out
during the initial medical examination, they
would succeed. On the other hand, if they
do suffer from the ailments/shortcomings,
they would be discarded. There is no right
of further appeal against the decision of the
review
medical
board.
In
case
the
certificates furnished by the petitioners are
relied upon at this stage, the respondents
would not suffer except that they shall have
to hold a review medical examination. On
the other hand, if the petitioners really do
not suffer from any ailment/shortcoming, as
alleged, but their appeal for review medical
examination is rejected at the very
threshold on the above ground, they would
suffer irreparable loss and injury. In all
events, therefore, the appeals preferred by
9 All. Dilip Kumar Pandey Vs. State of U.P. & Anr.
75
the petitioners for a review medical
examination should not be dismissed in the
manner
as
has
been
done
by
the
respondents.

16. In consequence and as a result of
above discussion, the writ petitions succeed
and are allowed. The respondents are
directed to constitute Review Medical
Board for re-examination of the petitioners
within a period of one week from the date
of production of true attested copy of the
instant order before them.

17. No order as to costs.
----------
(2020)09ILR A75
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2020

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 6322 of 2018

Dilip Kumar Pandey ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Pandey

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-The
Uttar
Pradesh
Finance and Accounts Service Rules, 1992:
Rule 17 - Promotion - The word used in
Rule 17 is "seniority subject to rejection of
unfit", which means that seniority alone is
not the sole criteria. The suitability of a
candidate is also the relevant criteria for
consideration for promotion. Thus, if a
candidate is not found fit by the Selection
Committee, he cannot be promoted solely on
the ground of seniority. The pendency of a
criminal case against an employee would be a
valid and proper circumstance to be taken into
account while considering the suitability of a
candidate for promotion under Rule 17 of Rules
1992. (Para 14)

As the charge-sheet in the criminal cases has
been filed against the petitioner before the
meeting
of
D.P.C.,
therefore,
the
recommendation of the selection committee
should have been kept in the sealed cover in
view
of
respective
office
Order
(dated
28.05.1997). Hence, the petitioner could not
have been recommended by the selection
committee nor could he be promoted. Thus, the
promotion of the petitioner was illegal. (Para 15,
16)

B. Office Memorandum or government order
cannot override a statutory provision, but if
the rules are silent on any particular point,
the government can fill the gap and
supplement the rules and issue instructions
not inconsistent with the rules.

The object of adopting a sealed cover procedure
is to ensure that a person against whom a
decision is taken to proceed departmentally or
judicially on a charge constituting misconduct is
not left out of consideration for promotion
merely because an enquiry is pending against
him, therefore to balance the interest of the
Establishment, which is that an unworthy person
is not promoted, and that of the incumbent, so
that upon exoneration in enquiry he is not
deprived of the fruits of promotion, the
candidature of the incumbent for promotion is
considered but recommendation is kept in a
sealed cover to be opened and implemented
upon exoneration in the inquiry.

Thus, keeping in view the object for adopting
sealed
cover
procedure,
the
Office
Memorandum (dated 28.05.1997) cannot be
said to be inconsistent with Rule 17 of the
Rules, 1992. (Para 17, 18)

C. Principles of natural justice - It is
settled law that where the facts are
admitted and only one conclusion is
possible, the observance of principles of
natural justice is empty formality and
observance of it is not necessary since it
does not cause any prejudice to the
person concerned.