Kartikeya Arora v. Union of India & Ors

ASHA MENON, J.

RAJIV SAHAI ENDLAW, J. SEPTEMBER 02, 2020 s/ak

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 2nd September, 2020 + KARTIKEYA ARORA ..... Petitioner Through: Mr. Ankur Chhibber and Mr. Anshuman Mehrotra, Advocates versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. Anil Soni, CGSC CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MS. JUSTICE ASHA MENON [VIA VIDEO CONFERENCING] JUSTICE ASHA MENON W.P.(C) 3485/2020 & CM APPL. 12358/2020 (for direction) 1. The petitioner appeared in the examination conducted by the Union Public Service Commission (UPSC) for recruitment to the post of Assistant Commandant in the Central Armed Police Forces (CAPFs) held on 18th August, 2019 in which he was declared successful. Thereafter, he was issued an Admit Card by the respondents for the Physical Standard Test/Physical Efficiency Test (PST/PET) and the Medical Standard Test (MST), which were scheduled to be held on 16th December, 2019. After he cleared the PST/PET, the respondents asked the petitioner to appear for the Medical Examination scheduled on 16th December, 2019 to 18th December, 2019. Unfortunately, the petitioner was declared 'unfit' for the reason of "Right Sided Pleural Effusion". 2. The petitioner desired to seek a Review Medical Board (RMB), as he was informed that he could file for an appeal if he was aggrieved by the decision of the Medical Board. As per the requirement for such an RMB, the petitioner underwent a medical examination on 20th December, 2019 at Safdarjung Hospital, New Delhi. According to the petitioner, he was examined by a Chest Physician, who declared him 'fit' with the specific remark that "there was no evidence of pleural fluid". 3. Armed with this Medical Fitness Certificate issued by a Government Hospital, the petitioner appeared before the RMB, which was conducted on 4th March, 2020. Once again, the petitioner was declared 'unfit' for the reasons (a) "pleural thickening" and (b) "post tuberculosis". 4. Aggrieved by these findings, the petitioner has filed the instant petition with the following prayers: - "(a) Issue a writ of certiorari for quashing the order dated 18.12.2019 and 05.03.2020 whereby petitioner was declared medically unfit by the respondents; (b) Issue a writ of mandamus directing the respondents to allow the petitioner to appear for a fresh medical examination before an independent board set up by the respondents and if found fit, be appointed as assistant commandant with all consequential benefits. (c) Pass any such orders as the Hon'ble Court may deem fit in the light of above mentioned facts and circumstances of the case." 5. The learned counsel for the petitioner referred to Annexure P-6 being the OPD Prescription dated 20th December, 2019, relating to the petitioner, which records the following: - "Asymptomatic subject. No h/o cough/exp./shortness of breath/fever O/E p- 130/80 BP – 62/minute Treated for (Illegible) Empyema Thoracis 15 years ago Xray chest PA dt. 19.12.19. Imp.: Healed Right sided pleural thickening empyema (Illegible) (Illegible)(Pleural thickening) RT USG: No evidence of No active pulmonary infection is pleural fluid. (Illegible) at present. PFT: - Within Nl Limits" signed Dr.(Prof.) M.K. Sen Consultant Chest Physician VMMC & Safdarjung Hospital New Delhi" Learned counsel submitted that the 'healed empyema' related to a bacterial infection that the petitioner suffered as a child on sustaining injury, which had healed, and that the petitioner had never suffered from tuberculosis. Thus, the contemporaneous examination of the petitioner by the doctors at Safdarjung Hospital reflected no "pleural fluid" or "pulmonary effusion". 6. The learned counsel submitted that as per the Guidelines for Recruitment Medical Examination in Central Armed Police Forces and Assam Rifles May 2015, (Guidelines) for medical examination of recruits, the RMB had to be manned by doctors who were specialist in that area of medicine in which the candidate was found wanting (Annexure R-1). It was argued that as per t