Pradeep Kumar v. Union of India & Ors.

1. This order is in continuation of the orders dated 14.3.2016 and 31.3.2016. On 14.3.2016, counsel for the respondent had sought time to produce a medical expert to assist the Court. On the next date, i.e., on 31.3.2016, counsel for the petitioner had sought an adjournment to produce some decisions to fortify his argument that delay in approaching the Court will not non-suit the petitioner.

2. The facts of the case may be noted first. In response to the Notification dated 23.7.2014, issued by the respondent/CRPF inviting applications from eligible persons to fill up 127 vacancies to the post of SI(GD), the petitioner had applied as a SC candidate. The petitioner had appeared for the written examination on 28.9.2014, which he had qualified. Thereafter, he was made to undergo the remaining recruitment process. On being physically examined by the Recruiting Officer on 12.10.2014, the petitioner was declared medically unfit on the ground that he had a tattoo on his right forearm. The petitioner was informed that he had a right to file an appeal against the rejection order dated 12.10.2014 within one month, if so 2016:DHC:5304 aggrieved. Accordingly, the petitioner had filed an appeal against the rejection order dated 12.10.2014, within one month. Between November to December, 2014, the petitioner went for appropriate treatment and after obtaining a fitness certificate from a Registered Medical Private Practitioner, he had appeared for a review medication examination at Delhi but this time too he was declared medically unfit on account of an unhealthy tattoo scar on his right forearm and on the ground that he was overweight.

3. Aggrieved by the second rejection order dated 27.11.2014, the petitioner had served a legal notice dated 10.2.2015 on the respondent/CRPF for reconsidering his case and declaring him medically fit. The said notice was replied to by the respondent, vide letter dated 24.7.2015, stating inter alia that after his initial medical examination, the petitioner’s candidature had been turned down and he had filed an appeal against his rejection. Thereafter, a review medical examination was conducted in respect of the petitioner on 27.11.2014, where he was again declared unfit on the ground that removal of the tattoo had left an unhealthy scar on his arm due to which he was ineligible for selection. Aggrieved by the said decision, the petitioner filed the present petition in October, 2015.

4. On 31.3.2016, in the course of arguments, counsel for the respondent had stated that there is no vacancy for the post of Sub-Inspector (GD) in the SC category upon conclusion of the Limited Department Competitive Examination-2014 (LDCE-2014) and pointed out that when the LDCE-2015 was held, though the petitioner was eligible to apply, he had elected not do so. An objection was also raised with regard to delay on the part of the petitioner in approaching the Court for relief. In response thereto, learned counsel for the petitioner had sought time to produce some citations to demonstrate that delay alone cannot be a ground to non-suit the petitioner.

5. Mr. Bareja, learned counsel for the petitioner relies on two decisions of the Division Bench of this Court in WP(C)No.2947/2011 entitled ‘Nema Ram vs. UOI & Ors.’ and WP(C)No.4564/2012 entitled ‘CT/GD Vijay Shankar vs. Union of India & Ors.’ and submits that in both the cases, though there was some delay on the part of the petitioners therein in approaching the court for relief, the petitions were duly entertained on merits and necessary orders passed.

6. We have perused the judgments referred to by learned counsel for the petitioner. In the case of Nema Ram (supra), the subject matter of consideration was LDCE-2010 conducted by the CRPF for the post of SI (GD), where the petitioner’s candidature was turned down on medical grounds, but on a Review Medical Examination conducted on 23.11.2010, it was noted by the Court that an inconclusive opinion had been given with regard to his medical fitness, whereafter the respondents did not medically examine him till the date of filing of the said petition, in the year 2011. Noting that the respondent/CRPF had slept over the matter ever since 23.11.2010, the said petition was considered and disposed of on merits.

7. We are of the opinion that the decision in the case of Nema Ram (supra) would not be of much assistance to the petitioner here as in the present case there is no delay that is attributable to the respondent, for which benefit must go to the petitioner and any direction be issued to the respondent for making him undergo a fresh medical examination.

8. As for the second decision in the case of Vijay Shankar (supra), the examination in question was for the post of SI(GD) in the CRPF, for which LDCE-2011 was conducted. The petitioner therein was intimated vide letter dated 14.12.2011, to get himself medically examined at the Battalion NDRF Hospital. When the petitioner had approached the Battalion NDRF Hospital, he was referred to U.N. Mehta Institute of Cardiology and Research at Ahmedabad on 13.12.2011. On the very next day, i.e., on 14.12.2011, the petitioner had appeared at the said hospital, where the Cardiologist had given an opinion that was contrary to the opinion given by the doctors of the respondent. The petitioner had then preferred an appeal on 17.12.2011, annexing therewith his fitness certificate issued by the aforesaid hospital. But the said appeal was turned down only on the ground that the medical fitness certificate of the petitioner therein could not be relied upon since it did not mention the fact that he had been declared medically unfit by a Board of doctors. Taking note of the fact that the communication dated 14.12.2011 sent to the petitioner did not inform him that if he intended to file an appeal against the decision of the Medical Board, he must obtain a fitness certificate from an institute of repute and that certificate must record inter alia that the doctors had been informed that he had been rejected by the Board of doctors, who were government doctors, the said petition was allowed.

9. We may note that in the captioned case, there was no delay on the part of the petitioner in approaching the Court for relief inasmuch as his appeal was turned down in the month of December, 2011 and he had approached the court within a reasonable time reckoned therefrom as is apparent from the fact that the decision of the court was rendered in the said case within eight months, in August, 2012.

10. In the present case, there has been a delay of almost one year on the part of the petitioner in approaching the Court for relief. His case was turned down in the Review Medical Examination conducted in November, 2014 whereas the present petition was filed in October, 2015. The only explanation offered for the delay by learned counsel for the petitioner is that a legal notice was issued on behalf of the petitioner on 10.2.2015 and only after a reply dated 24.7.2015 was received from the respondent, did the petitioner take steps to file the present petition on 9.10.2015.

11. No doubt, in strict terms, there is no limitation prescribed under Article 226 of the Constitution of India for seeking judicial review of orders passed by the State/public authorities. However, reasonableness of the delay in approaching the court must be examined by the Court in each case. In cases where departmental examinations are conducted, candidates who do not clear the said examinations or have failed to pass the medical examination, cannot expect to wait for almost one year to approach the Court for relief as the ground situation with regard to vacancies is bound to change in that duration. As indicated in the order dated 31.3.2016, counsel for the respondent had clearly stated that there is no vacancy available for the post of Sub-Inspector (GD) in the SC category upon conclusion of the LDCE-2014. By now, the LDCE-2015 has also been concluded and we are given to understand that the results are due to be declared at any time. Even today, counsel for the respondent has clarified, on instructions, that vacancies for SC candidates for the said post were not carried forward when conducting the LDCE-2015. In these circumstances, the request of the petitioner’s counsel that his candidature be considered for the LDCE-2015 examinations cannot be acceded to more so when he did not even participate in the said examinations.

12. Taking into consideration the facts noted above and further, having regard to the fact that to satisfy ourselves, we had made efforts to call for and interact with the doctor who was a part of the Review Medical Board conducted in respect of the petitioner on 31.03.2016 and he had specifically stated before us that at the time of the petitioner’s examination, the scar marks on his right forearm after removal of the tattoo, were unhealthy, we are not inclined to entertain the request made on behalf of the petitioner that he may be referred to some other medical expert for a review medical examination, to verify the present condition of the scar.

13. We also gather an impression that there has been intentional delay in approaching the court so that there would be ample time for the scar on the petitioner’s forearm that was found to be unhealthy during the Review Medical Examination conducted in November, 2015, to get healed for the petitioner to request for a re-examination under changed circumstances. It must not be forgotten that powers of judicial review are meant to be exercised to examine if the decision making process adopted by the respondent at the given point in time, was flawed. But the petitioner cannot be given another chance to better his prospects after the passage of almost one year from the date of cause of action had arisen in his favour.

14. Accordingly, the prayer made in the petition is declined and the writ petition is dismissed. HIMA KOHLI, J SUNIL GAUR, J JULY 29, 2016/sk/tp/rkb