# Vivek Kumar v. State of U.P. & Ors - **Citation:** (2020) 2 ILRA 125 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-02-13 - **Case number:** Special Appeal Defective No. 117 of 2020 - **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-kumar-v-state-of-u-p-ors-45652 - **Pages:** 4 ## Headnote A. Service Law- Recruitment - Medical evaluation - A claim sought to be set up on the basis of a subsequent medical report produced by the candidate would not have the effect of overriding or setting at naught the expert opinion of the Medical Board set up as per the statutory rules in a recruitment process. (Para 13) The appellant did not challenge the decision of the Medical Board for being arbitrary, capricious or not in accordance with relevant statutory procedure. (Para 12) Special Appeal (D) dismissed. (E-4) Precedent followed: ## Text 2 All. Vivek Kumar Vs. State of U.P. & Ors. 125 judgments and also the judgment of the Delhi High Court in the case of Commissioner of Trade Taxes vs. Symphony Enterprises And Others, 2007 INDLAW DEL 1301, wherein it has been clearly held that toners and cartridges are part and accessories to computer systems. The functioning of these cartridges was explained, from which it appears that ink cartridge is a sophisticated Engineering design to provide and regulate back pressure, which is essential to perform its job of delivering the right amount of ink to the printer nozzel and toner cartridge, which is fitted in laser jet printer generates laser beam which acts on the photo sensitive drum. Thus, the ink jet cartridge/toner cartridge is a part and accessory to a printer, which has been held to be a peripheral to a computer system. Therefore, all spare parts, components and accessories of such goods shall also be taxed at the same rate, as that of the goods if such spare parts, components and accessories are not specifically enumerated are liable to be tax in the same manner as goods enumerated in the schedule. 13. In order to determine the above controversy, it is necessary to examine the nature of goods as dealt by the seller and consumer of the said product or better known as the "Common Parlance Test". 14. Undoubtedly, the printer is sold along with the 'Cartridge' and is included in the package containing the printer and therefore from the above fact it can be deduced that the printer includes a 'Cartridge' and are sold together. 'Cartridge' being a consumable item has to be periodically replaced/recharged with toner. 15. In the light of the above discussion, this Court is of the considered view that toner cartridges are part of a printer and are liable to be taxed at the same rate as printer. It is the duty of the taxing authority, firstly to see that whether an item falls in any of the category mentioned in the schedule and only when such an item is not found falling in any of the schedule can the same be taxed in the ancillary clause. 16. In the instant case toner cartridge being part of printer, which are sold alongwith printers have to be taxed at the same rate as the printers and not under the residuary provision. 17. In view of the discussion made above, this Court is of the considered opinion that the impugned order passed by the Tribunal is not sustainable and the same is accordingly set aside. 18. The revision is allowed. 19. The question of law is answered accordingly. ---------- (2020)02ILR A125 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 13.02.2020 BEFORE THE HON'BLE BISWANATH SOMADDER, J. THE HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J. Special Appeal Defective No. 117 of 2020 Vivek Kumar ...Appellant Versus State of U.P. & Ors. ...Respondents Counsel for the Appellant: Sri Phool Chandra Yadav, Sri Sharad Kumar Srivastava 126 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Respondents: Sri Ankit Gaur (S.C.) A. Service Law- Recruitment - Medical evaluation - A claim sought to be set up on the basis of a subsequent medical report produced by the candidate would not have the effect of overriding or setting at naught the expert opinion of the Medical Board set up as per the statutory rules in a recruitment process. (Para 13) The appellant did not challenge the decision of the Medical Board for being arbitrary, capricious or not in accordance with relevant statutory procedure. (Para 12) Special Appeal (D) dismissed. (E-4) Precedent followed: 1. Union of India and others Vs. Parul Punia, 2016 (2) ADJ 14 (Para 9) Present appeal is against the judgment and orders dated 27.05.2019, passed by Learned Single Judge, in Writ- A No. 7455 of 2019. (Delivered by Hon'ble Biswanath Somadder, J. & Hon'ble Dr. Yogendra Kumar Srivastava, J.) Civil Misc. Delay Condonation Application No.1 of 2020 1. After considering the submissions made by the learned advocates for the parties and upon perusing the application for condonation of delay, it appears that sufficient cause has been shown to explain the delay in filing of the appeal and as such, the delay is condoned. 2. The application for condonation of delay, being Civil Misc. Delay Condonation Application No.1 of 2020, is accordingly allowed. Special Appeal Defective No.117 of 2020 1. This Special Appeal arises in respect of a judgment and order dated 27th May, 2019, passed by a learned Single Judge in Writ-A No.7455 of 2019 (Vivek Kumar Vs. State of U.P. and three others). 2. By the impugned judgment and order, the learned Single Judge proceeded to dismiss the writ petition holding the same to be devoid of merit. 3. The appellant before us is the writ petitioner. 4. The issue that was considered by the learned Single Judge was whether production of a subsequent medical examination report by the appellant-writ petitioner will override or set at naught, the medical opinion of the Regional/District Medical Boards dated 11th April, 2015 and 7th April, 2015, which clearly show that the appellant-writ petitioner was suffering from an ailment in the left ear and accordingly was assessed unfit. 5. The learned Single Judge, while deciding the matter, took note of the fact that even the medical examination report, produced by the petitioner before the writ court, indicated that he was suffering from an ailment in the left ear. 6. Although, the learned advocate for the appellant-writ petitioner placed reliance upon a Single Bench decision of this Court in order to contend that a fresh Medical Board ought to be directed to be constituted to re-examine the appellantwrit petitioner, the learned Single Judge took notice of a Division Bench judgment 2 All. Vivek Kumar Vs. State of U.P. & Ors. 127 of this Court (which was taken into consideration by the learned Single Judge whose judgment was sought to be relied upon by the learned advocate for the appellant-writ petitioner). The operative portion of the impugned judgment and order against which the present appeal has been preferred, reads as follows:- "It is only in exceptional circumstances, when, there is overlapping evidence available on the record and such overlapping evidence is credible. The Court can intervene in the ends of justice. The learned counsel for the petitioner failed to show that the medical opinion of the respective Medical Boards brought on record are doubtful as compared the medical report/opinion relied upon by the petitioner. All the medical opinions declare the petitioner that he is suffering from ailment in the left ear. The writ petition being devoid of merit, is accordingly, dismissed." 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. 9. It would be apposite to refer to the observations made in the decision rendered in the case of Union of India and others Vs. Parul Punia, wherein it was observed as follows:- "6. ...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..." 10. The Division Bench, in the aforesaid judgment, dealing with the parameters of exercise of writ jurisdiction in such matters, emphasised the need for caution and circumspection, and stated thus:- "9. ...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 128 INDIAN LAW REPORTS ALLAHABAD SERIES 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." 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. 13. Having regard to the foregoing discussion, we are of the view that a claim sought to be set up on the basis of a subsequent medical report produced by the candidate would not have the effect of overriding or setting at naught the expert opinion of the Medical Board set up as per the statutory rules in a recruitment process. 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. Any other view, in our opinion, may have the effect of derailing the recruitment process. 14. A bare perusal of the impugned judgment and order reveals that the same has been rendered by the learned Single Judge with cogent and justifiable reasons. 15. In an Intra-Court Special Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. 16. In the facts and circumstances of the instant case, on a plain reading of the impugned judgment and order, we do not notice any such palpable infirmity or perversity. As such, we are not inclined to interfere with the impugned judgment and order dated 27th May, 2019. 17. For reasons stated above, the Special Appeal is liable to be dismissed and stands, accordingly, dismissed. ---------- (2020)02ILR A 128 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 10.02.2020 BEFORE THE HON'BLE RAJESH SINGH CHAUHAN, J. Service Single No. 816 of 2015 Uma Shankar Singh ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Shikhar Anand. Laxmi Prasad Srivastava Counsel for the Respondents: C.S.C. A. Service Law- Pension/Retirement benefits - Civil Services Regulation: Article 361; U.P. Fundamental Rule 56