Vandana Vs State of U.P.

Pradeep Kumar Singh Baghel, J.—In this batch of petitions, the petitioners are candidates for appointment on the posts of Constables in U.P. Police and other equivalent posts. The candidature of all the petitioners has been rejected on medical grounds.

2. Before adverting to the issue involved in the petitions, the brief common facts of the case are necessary to be referred as under:

3. The Additional Secretary (Recruitment), U.P. Police Recruitment and Promotion Board, Lucknow issued a notification on 14th May, 2013, which was amended on 20th June, 2013 to initiate recruitment process for filling the posts of Constables in U.P. Police. Pursuant thereto an advertisement was issued inviting applications from the candidates against 20000 posts of Police Constables.

4. By the aforesaid subsequent notification dated 20th June, 2013, the posts of Police Constables were increased from 20000 to 35500, and 4033 posts were advertised for Constables in Provincial Armed Constabulary and 2077 posts of Firemen. It was mentioned in the advertisement that the candidates who had applied for the posts of Constables in pursuance of the earlier advertisement issued in the year 2011, their candidature will be considered as per the advertisement of 2011 and they were required to fill another form for which no fee was directed to be charged from them.

5. The candidates who had applied for the posts of Constables in pursuance of earlier advertisement were provided the age relaxation also. The recruitment process consists of a preliminary examination of 300 marks followed by a Physical Efficiency Test (PET), Main Written Examination, Scrutiny of Documents and Medical Examination.

6. In the notification dated 14th May, 2013 it was provided that the Joint Examination-2011 was cancelled on 15th July, 2011 and a fresh advertisement was made for the Police Constables in the Pay Band Rs. 5200-20200 with Grade Pay of Rs. 2000. In the said advertisement for the posts of Constables, 10000 posts were unreserved, 5400 posts were reserved for the Other Backward Classes, 4200 posts under the Scheduled Castes Category and 400 posts under Scheduled Tribes. 2% horizontal reservation was also provided to the dependents of Freedom Fighters, 5% for Ex-Army Personnel and 5% for Homeguards and 20% for Female category.

7. It was also made clear that the number of the vacancies can be varied before the preliminary examination. The last date for submission of the form was 18th August, 2013. A brochure was issued containing detailed instructions and requirements under the relevant rules regarding physical and written examinations. It provided that minimum height of the male candidates of General, Other Backward Classes and Scheduled Castes should be 168 centimeters and of the female candidate 152 centimeters; for the candidates under the Scheduled Tribes category it was 160 centimeters for male and 147 centimeters for female candidate. It was also mentioned that the examination shall be of 300 marks, wherein 150 marks were assigned for General Knowledge and Current Affairs, 75 for Reasoning Ability and 75 for Numerical Ability. Thirty-five percent of the marks was the minimum qualifying marks in the preliminary examination.

8. It further provided that out of the successful candidates in the preliminary examination against the existing vacancies, ten times candidates equivalent to ten times of the vacancies on the basis of the reservation would be called to participate in the next step of examination i.e. Physical Efficiency Test. The candidates who qualify the Preliminary Examination and PET, had to appear in the Main Written Examination, which is of 300 marks. The Main Written Examination consists of general awareness, mental ability, reasoning and comprehension. Thirty-five percent of the total marks is the qualifying marks and it is not necessary to secure 35% in each paper. The Main Written Examination is based on objective system. After the main written examination, a select list is prepared and the testimonials are verified on the day when they are medically examined.

9. The instructions contain details about the medical examination. The medical examination of a candidate is conducted by the Board of Doctors. The instructions provide that the medical examination shall be conducted in terms of the provisions of Health Manual. It would include the height of the male and female candidates. It provides that the Medical Board shall follow the instructions of "iqfyl HkrhZ fpfdRlk ijh{kk izi=" (Police Recruitment Medical Test Proforma).

10. In the medical examination the following physical standards are to be examined:

Knock knee, bow legs, flat feet, and varicose veins, distant and near vision, colour blindness, hearing test comprising Rinne''s test, Webber''s test and tests for vertigo etc. in terms of the orders issued by the State Government from time to time.

11. The instruction further provides that the candidate who is dissatisfied with his medical examination, can file an appeal on the same day. It further provides that if on the same day a candidate fails to make an appeal, no appeal shall be entertained.

12. All the petitioners in this batch of writ petitions have cleared Preliminary Written Test, Physical Efficiency Test, Main Written Examination but they have been declared medically unfit by the Medical Board.

13. On 16th July, 2015 the select list was declared and total 38191 candidates were declared selected on the post of Constable in Civil Police, Constable in PAC and Firemen in U.P. Fire Services Department. In the said result it is mentioned that the following number of posts are vacant:

Thus total 2312 posts are still vacant.

14. All the petitioners in the writ petitions have been rejected in medical test.

15. It would be appropriate to mention the brief facts of each writ petition of this batch of writ petitions which are enumerated below:

(I) Writ-A No. 52546 of 2015:

16. The petitioner is an OBC female category candidate. She had cleared all the tests but was rejected in the medical test. It is stated that after her success in the main examination under the OBC category a call letter was issued to her for appearing in the last stage of selection i.e. for document verification and the medical examination, which was scheduled to be held on 01st April, 2015 at Police Lines Amroha. On the scheduled date her documents were verified and after the medical examination she was orally informed by the medical authority that she has knock-knee and accordingly she was declared unfit. The petitioner has stated in the petition that immediately thereafter the authorities issued instructions for unsuccessful candidates, who had been disqualified in the medical examination, that if they desire, they can undergo for the re-medical examination. In pursuance of the said instructions she get herself medically examined again. The examination was conducted without any proper procedure or taking care of the instructions for conducting medical examinations and she was again declared medically unfit due to knock-knee.

17. The grievance of the petitioner is that the said re-medical examination was nothing but an empty formality and was conducted without following the procedure, the rules and the instructions given in the brochure.

18. The petitioner states that since she was not satisfied with the manner in which the medical examination was conducted, later she got herself medically examined by an Orthopedic Surgeon, wherein she was found to be medically fit.

19. Learned Counsel for the petitioner submitted that the medical examination of the petitioner was totally illegal, arbitrary and against the provisions of the U.P. Police Constables and Head Constables Services Rules, 2008(the Rules, 2008). He submitted that Rule 11 of Chapter-III Part-II of Vol. V of the Financial Handbook provides a detailed procedure for the medical examination, required to be followed by the Medical Board. He has invited the attention of the Court to an order of a Division Bench of this Court dated 21st November, 2007 passed in a batch of special appeals led by Special Appeal No. 1573 of 2007 (Arvind Kumar Sonkar v. State of U.P. and others), wherein the Division Bench has directed the Government to conduct re-medical examination by the newly constituted Medical Board. He has also invited the attention of the Court to a large number of interim orders passed in various writ petitions following the order of the Division Bench.

20. Learned Counsel for the petitioner has also relied on a judgment of a learned Single Judge of this Court dated 29.3.2011 passed in a batch of writ petitions led by Writ-A No. 16288 of 2011 (Rahul Kumar v. State of U.P. and others), wherein this Court after examining the Rules, 2008 has found that there is no provision for re-examination by Medical Board.

21. In paragraph-75 of the writ petition an allegation has been made that at the time of medical examination, a doctor of District Hospital, Amroha, who has been made party in personal capacity as respondent no. 9 in writ petition, had made demand of an illegal gratification for an amount of Rs. 15,000 from the petitioner and the petitioner has refused the same, therefore, the petitioner has been declared medically unfit by an oral order.

22. It is also stated that in several districts in the State of U.P., doctors were caught red-handed and cash money was recovered from their possession. In support of the said statement the petitioner has brought on the record a copy of the first information report relating to Case Crime No. 220 of 2015, Police Station Civil Lines, District Aligarh under Section 7, 8, 10 & 13 of the Prevention of the Corruption Act, as annexure-14 to the writ petition.

23. The petitioner has also brought on the record the clippings of various news items published in National newspapers Amar Ujla and Dainik Jagran that in district Sant Kabir Nagar the District Magistrate directed to conduct a raid on the members of the Medical Board and on their search a sum of Rs. 1,21,000/- was found in their possession, with regard to which a first information report has been lodged against those doctors.

(II) Writ-A No. 51517 of 2015:

24. Seven petitioners have joined this writ petition. All the petitioners have qualified the Preliminary Examination, Physical Efficiency Test, Written Test. All of them have been rejected in the medical examination.

25. The grievance of the petitioners is that they have not been communicated any reason for their rejection by the Medical Board and by the oral order they were informed that they have been found medically unfit.

26. This Court on 17th September, 2015 had asked the learned Standing Counsel to seek instructions in the matter. Learned Standing Counsel has produced the instructions which have been taken on the record. In the instructions it is mentioned that the petitioner nos. 1, 2, 3 & 4 have been rejected on the ground of knock-knee. The petitioner no. 5 has been rejected on the ground of distance vision (left eye-6.9: Right eye-6.12), petitioner no. 6 on the ground of colour blindness, and the petitioner no. 7 has been declared unfit on the ground of flat-feet.

27. It is averred that the petitioners had filed their appeal and in their fresh medical examination, which was held at Moradabad, they were again rejected. All the petitioners have disputed the findings of Medical Board and they have brought on the record the medical certificates issued by the private medical doctors showing the petitioners medically fit.

28. Learned Counsel for the petitioners has placed reliance on a judgement of a Division Bench of this Court dated 21st November, 2007 passed in a batch of special appeals led by Special Appeal No. 1573 of 2007 (Arvind Kumar Sonkar v. State of U.P. and others).

(III) Writ-A No. 52743 of 2015:

29. The petitioner had applied in pursuance of the advertisement dated 14th May, 2013. He belongs to OBC Male category. He had obtained 310.0637 marks. He was declared unsuccessful on the medical ground. The petitioner''s medical test was conducted at Reserve Police Lines, Mati, Kanpur Dehat on 10th June, 2015 in which he was declared unsuccessful. The petitioner was informed about the said fact on 13th July, 2015 by the second respondent from Mobile No. 9454401472 that the petitioner was not present at the time of medical examination and his medical papers have not been traced out.

30. It is submitted by the petitioner that he was present at the time of document verification and he was declared successful in the document verification and in medical examination by an oral order he was declared unfit.

31. The petitioner has impleaded the Incharge Doctor of Kanpur Dehat Selection Board in his personal capacity and has made serious allegations of mala fide in paragraph nos. 67 to 70 of the writ petition. He has also brought on the record the newspaper clippings published in several national newspapers regarding the serious allegations of gratification against the doctors who have been the members of Medical Board.

32. I have heard Sri Vijay Gautam, Sri Anand Ji Mishra, Sri Kaushal Pandey, learned counsel for the petitioners, and Sri Vikram Bahadur Yadav and Sri Aditya Kumar Yadav, learned Standing Counsel appearing for the State.

33. Learned Counsel for the petitioners submitted that the petitioners have qualified all the stages of recruitment but in the medical examination they have been rejected illegally. The medical examination was not conducted fairly and the petitioners were orally informed by the medical authorities that they are medically unfit.

34. It is stated that no written order was furnished thus, without disclosing reason, they have been declared unsuccessful illegally. It is further submitted that in absence of any reason furnished to them, the provision for filing an appeal on the same day is illusory and empty formality.

35. Learned Counsel for the petitioners further submitted that the medical examination was not fair and transparent and has been conducted contrary to the provisions of the statutory rules. The procedure for medical examination has been laid down under Appendix-3, 4 & 5 to Rule 15 of the Rules, 2008 particularly the Appendix-5, which has been violated.

36. They further submitted that Appendix-5(d) provides that any candidate who is not satisfied by his medical examination, shall file an appeal on the date of examination. According to learned counsel for the petitioners, the said clause is arbitrary and ultra-vires as well as it is unreasonable as it does not give any sufficient reasonable time to a candidate to file an appeal.

37. Amplifying the submissions, they urged that providing such a short time makes the provision of the appeal mere empty formality. He urged that on this ground alone the Appendix-V to Rule-15 of the Rules, 2008 suffers from vice of arbitrariness and may be declared as ultra vires. It was contended that in view of wide spread allegations which have been highlighted by the national newspapers, the candidates do not have any faith in the Medical Board which is constituted to re-examine the candidates on their appeal. Lastly they urged that even the Medical Board simply repeats the same finding of earlier medical examination and it does only formality. The result of the Medical Board is not communicated to a candidate in writing and no reason is furnished to the candidates, however, they are only orally informed about their rejection. It was also submitted that the fact that all appeals have been rejected, itself shows that the medical appeal is an eye wash.

38. It was urged that Appendix-5 to the Rules, 2008 provides only standardised equipments having Indian Standard Institute certification or duly certified by the Directorate of Weight and Measure are to be used for Physical Standard Test Examination. However, the respondents have not used the standardised equipments and the measurement of their heights was done manually.

39. Learned Standing Counsel, who has received instructions, which have been taken on the record, submits that the petitioners have not been found medically fit and the candidates who have been rejected in medical examination, can file an appeal before the Medical Board on the same day. The petitioners have been re-examined by the Medical Board and they have been found medically unfit, hence their appeals were rejected. He has drawn the attention of the Court to the original record produced by him and the instructions wherein the name of deficiency in respect of each candidate has been recorded. Lastly, he urged that for appointment on the post of constables in the police force, medical fitness is a paramount consideration. According to him, the Rules do not require giving reason at first instance by the Medical Board or by Appellate Medical Board. In case reasons are furnished to each candidate, it would cause unnecessary delay in completing the recruitment process.

40. Learned Standing Counsel has vehemently opposed the submission of learned counsel for the petitioners for re-constitution of a fresh Medical Board to re-examine the petitioners.

41. I have considered the submissions of learned Counsel for the parties and perused the record.

42. The recruitment on the post of Constable in Civil Police is regulated by the Uttar Pradesh Police Constables and Head Constables Service Rules, 2008. The said Rules have been framed under Section 46 read with sub-section (3) of Section 2 of the Police Act, 1861. Part-III of the Rules, 2008 deals with recruitment. Rule-5 provides the source of recruitment on the post of constable. The post of constable is filled by 100 per cent direct recruitment. Part-V lays down the procedure for recruitment. Rule-15 provides the detailed procedure for direct recruitment of constables.

43. Regard may be had to the fact that there are three recent amendments in the Rules, 2008. The relevant amendments in respect of the recruitment for our purposes are; (i) the Uttar Pradesh Police Constables and Head Constables Service (Third Amendment) Rules, 2013, which was published in the gazette on 09th April, 2013; (ii) the Uttar Pradesh Police Constables and Head Constables Service (Fourth Amendment) Rules, 2013, published on 10th May, 2013; and (iii) the Uttar Pradesh Police Constables and Head Constables Service (Fifth Amendment) Rules, 2013, published on 04th June, 2013.

44. To answer of the aforesaid question, it will be necessary to have the benefit of relevant sets of rules governing the subject :

"15. Procedure for direct recruitment of Constable. - (a) Application.(i) A candidate shall fill the application form from one District only. Regarding allocation of Examination Center, the candidate may give more than one option. However, Board may allocate center other than those indicated by the candidate.

(ii) The details of the information regarding educational qualification, age, minimum qualifying standards for each category of examination, including physical, written, medical etc., minimum qualifying marks for Written Examination subject wise, copy of O.M.R. sheet for practise and other important guidelines as may be determined by the Board from time to time shall be provided by the Board on its website or any other method as it deems necessary.

(iii) The applications shall be invited by the Board giving the applicants adequate time for application. The candidate shall be personally and solely responsible for its accuracy and completeness, if Form of any candidate Found incomplete, wrong or having inaccurate information, this Form shall be cancelled.

(iv) An applicant shall certify himself all his certificates and documents and be responsible for their genuineness and correctness.

(v) The application form may also include identification details like Unique Identity Number, thumb and finger impressions, photograph or bio mertrics in appropriate manner as prescribed by the Board from time to time.

(vi) The head of the department may fix an application fee for any recruitment.

(vii) The Board shall have the right to summarily reject the candidature of an applicant for any incompleteness or inaccuracy or variation or conflict with any previous or subsequent information submitted by the candidate.

(viii) The Government may change the number of vacancies for any recruitment at any time before the first examination and may also cancel any recruitment at any time or stage of recruitment without assigning any reason thereof.

(b) Call Letter - Call letters for candidate shall be made available at least ten days before the examination.

(c)Preliminary Written Test. - Candidates whose applications are found to be correct may be required to appear in an objective type preliminary written test of qualifying nature. The test shall be of one paper of 300 marks and contain questions on general knowledge, current affairs, reasoning ability and numeric ability of appropriate level, the detailed syllabus for which shall be notified by the Board from time to time. The candidate who fails to obtain 35% marks shall not be eligible for recruitment. From the candidates who pass the preliminary written test, a number equal to ten times the number of vacancies shall be eligible for the physical Efficiency Test.

(d) Physical Efficiency Test. - The eligible candidates shall be required to appear in a Physical Efficiency Test which shall be of 100 marks. The procedure for conducting the Physical Efficiency Test shall be such as prescribed in Appendix-2.

(e) Main Written Examination.The eligible candidates who qualify Physical Efficient Test shall be required to appear in the main written examination which will be of objective type shall carry 300 marks. The written paper will consist of questions covering, general awareness, mental ability, reasoning and comprehension. The detailed syllabus for the examination shall be notified by the Board. The procedure for conducting written examination shall be such as mentioned in Appendix-3. Candidates who fail to obtain 35% marks in the main written examination shall not be eligible for recruitment.

(f) Scrutiny of Document and Medical Examination.-The Board shall prepare a merit list for each category of candidates on the basis of total marks obtained by the candidates according to the orders of the State Government and the provisions of enactments for the time being in force.

The scrutiny of documents of the above candidates shall be carried out as per Appendix-4. In case any document is found to be manipulated, inaccurate or forged during the scrutiny or at any time after the scrutiny, the candidature of the applicant will be cancelled at the discretion of the Board and Head of Department. Those candidates whose documents are found in order will undergo for Medical Examination as per Appendix-5.

Note.-The Medical Board shall examine the candidate and deficiencies thereof such as knock knee, bowlegs, flat feet, varicose veins, distant and near vision, colour blindness, hearing test comprising of Rinne''s test, Webber''s test and shall also tests for vertigo, speech defects etc. of the candidate as may be notified from time to time by the State Government.

(g) Selection and Merit List.-The Board shall prepare a final select list of candidates in order of their merit, keeping in view the reservation policy of the State.

If two or more candidates obtain equal marks, preference will be given to the candidates who have obtained higher marks in the main written examination. If two or more candidates secure the same marks in main written examination then the candidate who are older will be placed higher in the merit list. In case two or more candidates have the same date of birth, the candidates possessing preferential qualification as mentioned in Rule 9 will be placed higher in the merit list.

The final list shall be published in Website/Notice Board. This list shall be forwarded to the Head of Department, who will forward it to the Appointing Authority for further action.

Note. - If two or more candidates obtain equal marks then the merit list would be finalized, according to the following procedure:

(i) Such candidate will be given preference, having Preferential qualification, if any. A candidate having more than one preferential qualification will get benefit of only one preferential qualification.

(ii) If despite the above, two or more candidates have the same rank then such candidate will be given preference who secures higher marks in main written examination.

(iii) If despite the above two or more candidates have equal marks then such candidate will be given preference who is older in age.

(iv) If in spite of above, consideration still the marks are equal, and date of birth is same and marks in the main written examination are also the same then such candidate will be given preference in order of the first letter of the English alphabet of the first name as mentioned in High School Certificate.

The merit-list shall be published in website/Notice Board.

(ii) The Board shall prepare a select list of candidates in order of the merit, keeping in view the reservation policy guidelines and the total number of vacancies notified to the Board which will be subject to character verification by the Appointing Authority. The select list shall be forwarded to the Head of Department who will after approval forward it to the Appointing Authority for further action."

45. The details of the procedure to be followed for conducting the physical efficiency test, the main written examination, the scrutiny of the documents and medical examinations are further given in detail in Appendix-2, 3, 4 & 5 to Rule 15 of the Rules, 2008.

46. The Appendix-2 provides that the physical efficiency test will be conducted by a team comprising of six officers. One of them is a Medical Officer nominated by the Chief Medical Officer. It requires amongst others that physical efficiency test for constables shall consist of 4.8 km. run for male candidates to be completed within 30 minutes, and 2.5 km. run for female candidates to be completed within 18 minutes. It further provides that manual timing shall not be permitted and the standardised electronic timing equipment along with CCTV coverage and biomatric with adequate equipment will be used to ensure accuracy, transparency and avoid impersonation. The Appendix further lays down the detailed process which is to be followed by the team.

47. A candidate who is successful in the Physical Efficiency Test is required to appear in written examination. The written test carries 300 marks, 35% marks is the minimum required marks for being successful in the said examination. The Appendix-4 provides the procedure for scrutiny of the documents with regard to eligibility, relaxation and preferential qualification. The scrutiny of the documents is done before the candidate is medically examined. The documents are scrutinised by a committee consisting of, amongst others, District Magistrate or an officer nominated by him not below the rank of Sub-Divisional Magistrate, Deputy Superintendent of Police, District Inspector of Schools and others.

48. The Appendix-5 gives a detailed procedure for physical standard test and medical examination of the candidate. The issue raised in this batch of petitions relates to medical examination of the candidates, hence Appendix-5 is necessary to be quoted as under:

"Appendix-5

Procedure for Physical Standards Test and Medical Examination of the Candidates

1. Medical Examination Board. - Candidates found eligible in the prescribed written examination and physical examinations and short listed and whose documents have been found to be in order after the scrutiny vide.

Appendix 4 will undergo the Medical Examination.

2. Physical Standards Test. - The Medical Examination shall, in addition to parameters prescribed vide Point III below, include the Physical Standards Test consisting of a height, chest and weight measurement for male and female candidate as the case may be.

(1) The minimum physical standard for male candidates are as follows:-

(a) Measurement of Height. - (i) For General/other Backward classes and Scheduled Castes candidates shall be 168 Centimetres.

(ii) For tribal candidates the minimum height is 160 Centimetres.

(b) Measurement of Chest.-For the candidates belonging to General/Other Backward Classes and Scheduled Castes minimum chest measurement shall be 79 Centimeters without expansion and at least 84 Centimeters with expansion and for Scheduled Tribes 77 Centimeters without expansion and not less than 82 Centimeters on expansion.

Note. - Minimum 5 Centimeters chest expansion is essential.

(2)The minimum physical standard for female candidates.

(a)Measurement of Height. - (i) The minimum height for General/Other Backward Classes and Scheduled Castes women candidates is 152 Centimeters.

(ii) The minimum height for Scheduled Tribes women is 147 Centimeters.

(b) Measurement of Weight. - Minimum 40 Kg.

(3)The minimum Physical Standards of qualification of each test is to be displayed very prominently on boards in the Stadium/Police Line wherever the test is conducted before conducting the examination.

3. Doctors to examine as per Medical Manual.

Note. - (1) Only standardised equipment having Indian Standard Institute certification or duly certified by the Directorate of Weights and Measures are to be used for Physical Standard Test Examination.

(4)The Medical Board comprising one representative each belonging to Minority, Other Backward Class and Scheduled Caste shall examine candidates according to "Police Recruitment Medical Examination Form" as prescribed and codified by the Head of the Department in consultation with Director General Medical Health. This Form will be available on the Board website and also displayed at the place of medical examination.

(a)The Doctors will examine the candidates in accordance with the Medical Manual, if any, and announce the result on the day of the Medical Examination.

(b) The result of medical examination will be displayed on the notice Board outside the premises at the end of the day.

(c)The Board will explore and try to institute a system of online record of medical examination directly on a remote server with auditable trail of changes and each change bearing a time stamp. No changes will be allowed after final submission of a record.

(d)Any candidate not satisfied by his medical examination, shall file an appeal on the day of examination itself. No appeal with respect to the medical examination shall be entertained if the Candidate fails to appeal on the day of his medical examination and announcement of the result of the same. The appeal should be disposed of by the medical Board constituted for the purpose within one month of the appeal being filed.

(e)The members of the medical board who are found to give the wrong report wilfully will be liable for criminal proceedings.

(f)The Medical Examination is only qualifying in nature and it has no effect on the merit list."

49. As can be seen from a bare reading of the Rules, 2008 that a detailed and exhaustive procedure has been laid down for a fair selection.

50. Learned counsel for the petitioners has placed reliance on a judgement of this Court in the case of Ashok Kumar Singh Constable v. State of U.P. and others, Writ-A No. 30417 of 2011, wherein the petitioner, a candidate for the post of Constable, was rejected on medical ground. He was found fit by the Medical Board and was appointed on 10th July, 2005 as Constable in Civil Police. However, his services were terminated after completing training in the year 2007 on the ground that he is colour blind. It was challenged on the ground that no opportunity was afforded. The said case is clearly distinguishable. In the present case, the petitioners have not been appointed as they have been declared medically unfit.

51. In another judgement in the batch of writ petitions led by Writ-A No. 16288 of 2011 (Rahul Kumar v. State of U.P. and others), the Court has directed for further medical examination. In the said case the petitioners were declared medically unfit by the Regional Medical Board constituted at the training centre. Initially the petitioners were declared fit by the Medical Board. Later, they were further medically tested and were declared unfit and they were prevented from completing their training on the ground that the second medical examination was not warranted. It was urged that under the service rules there is no provision for re-examination by the Medical Board. The learned Single Judge in the said case relied on a judgement in Arvind Kumar Sonkar (supra). The said judgement has been distinguished by the latter Division Bench in Parul Punia (supra), wherein it was found that Arvind Kumar Sonkar''s case was decided on the basis of consent.

52. In the next case relied upon by the learned counsel for the petitioners i.e. Arvind Kumar Sonkar v. State of U.P. and others, Special Appeal No. 1573 of 2007, the selection was in respect of the year 2006 and it was a case before the amendment was made in the Rules in 2009, 2011 and 2013. Moreover, the impugned orders were set aside on the ground of violation of principles of natural justice. In that case also, the petitioners were selected against regular posts and they were working as constable and without affording any opportunity their services were terminated. In view of the said facts, the said case is distinguishable.

53. There is another aspect of the matter. In the present case, there are serious allegations about the conduct of doctors which is also evident from the reports published in national newspapers and the fact that the first information reports have been lodged against the doctors and some of them have been found in possession of illegal huge amount in cash. These facts further require that there should be a Medical Board of Experts.

54. A Division Bench of this Court in the case of Arjun Singh v. State of U.P. and others, Special Appeal Defective No. 540 of 2015, had an occasion to consider the issue with regard to interference under Article 226 of the Constitution in the matter of re-medical test. The Court has held that it would not be open for the Court to substitute its own opinion for the opinion of the medical authorities. However, the Court has further held that it can only interfere where there has been a violation of legal provisions or the decision has been arbitrarily taken. Emphasis supplied

55. It was also provided in the interim order that the date fixed by the Principal was to be informed to the Inspector General-cum-Chief Security Commissioner of the Railway Protection Force. In the re-medical examination, the team of the doctors nominated by the Principal, KGMC found that the candidate''s eye sight was within normal vision hence the writ petition was allowed.

56. In the Special Appeal the Court set aside the order of the learned Single Judge, principally on two grounds that in compliance of the interim order the officials of the Railways were not informed about the time when fresh re-medical was conducted and the order of the learned Single Judge was based on an order in the case of Arvind Kumar Sonkar v. State of U.P. and others Special Appeal No. 1573 of 2007, decided on 21st November, 2007, wherein a similar direction was issued to constitute a three-member Board to re-examine a candidate who was rejected by the Medical Board of the Railways.

57. The first question which needs to be answered is as to whether non-furnishing reason is arbitrary. Concededly, after a candidate is rejected by the Medical Board at district level, no order is served upon him. He is orally informed that he can file an appeal on the same day.

58. It is true that the Rules, 2008 do not provide to furnish reasoned order to a candidate for his rejection on medical ground. The rule is silent presumably on the ground that in such administrative matters, there is no need to furnish the reasons. This appears to be on the premise that the authorities concerned, are not required to consider that fairness or natural justice demands that while rejecting a candidate on medical ground, they have to record the reason. But the present trend is otherwise.

59. In England in Common Law, the administrative authority was not required to give reason in its decision. For the first time, Lord Denning M.R. in Breen v. Amalgamated Engineering Union [1971] 2 Q.B. 175 observed thus:

"The giving of reasons is one of the fundamentals of good administration"

60. However, the Courts in United States did not follow British law. They emphasised the need to record reasons in the orders. According to them, recording of the reasons serves following purposes:

(a) Decisions of authorities are subject to judicial reviews. The courts cannot exercise their duties of review unless order contains reasons.

(b) The authority should give clear indication that it has exercised the discretion within the four corners of law.

(c) The reason promotes the thought by the authority and eschews irrelevancies and assures careful administrative consideration.

61. Prof. H.WR. Wade in his classic work (Administrative Law, 6th Edition,) has expressed his view that recording reasons is a part of natural justice. The Supreme Court approved those principles in the case of Union of India v. Mohan Lal Capoor and others, (1973) 2 SCC 836 and in a Constitution Bench in the case of S.N. Mukherjee v. Union of India, AIR 1990 SC 1984. The Constitution Bench has held that giving reasons facilitate appellate or revisional authority to decide the matter and it also eschew arbitrariness. The Court followed the view which the American Courts have taken. The relevant paragraph of S.N. Mukherjee (supra) reads as under:

"36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."

(emphasis supplied)

62. The Supreme Court in the recent time has expanded the horizon of natural justice and reasons have been treated part of the natural justice. It has gone to the extent in holding that reasons are heart and soul of the order. The absence of reasons renders an order indefensible/unsustainable particularly when it is subject to appeal/revision. Reference may be made to the judgments of the Supreme Court in the cases of Ravi Yashwant Bhoir v. District Collector, Raigad and others, (2012) 4 SCC 407, Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336; Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496; Abdul Ghaffar and another v. State of Bihar, (2008) 11 SCC 204; Ram Phal v. State of Haryana and others, (2009) 3 SCC 258.

63. The position of law that emerges from the decisions, mentioned above, is that assignment of reasons is imperative in nature. The judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone pre-judicially.

64. It is a trite law that even if a Statute is silent and it does not provide the principles of natural justice or are not embodied in rule, if by an order a statutory authority affects a citizen with civil or evil consequences, it must meet the test of reasonableness. Civil consequences cover everything that affects a citizen''s civil life. Reference may be made to the judgment of the Supreme Court in the case of Mohinder Singh Gill and others v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405.

65. In view of the above, I do not find substance in the submissions of learned Standing Counsel that the Rules, 2008 do not require recording any reason, while rejecting a candidate on medical ground.

66. It is worth-mentioning that learned Standing Counsel has produced the original record, which indicates that even brief reasons have not been recorded and only in casual way deficiencies have been mentioned.

67. In medical matter the possibility of divergent opinions of doctors is common. Moreover in this profession, skills differ from doctor to doctor. There is always possibility of error of judgment while forming an opinion. It is trite that in realm of diagnosis and treatment there is a scope for genuine difference of opinion. Hence a brief description of deficiency with a brief reason is necessary to eschew the arbitrariness.

68. The record also indicates that in all the cases candidates'' appeals have been rejected in mechanical manner. In fact, the order of the Appellate Medical Board appears to be rubber stamp decision, which does not inspire confidence.

69. In the present case, the Rule, 2008 provides only an appeal, and there is no provision of revision or review. Hence, in absence of reason the appeal in the present case is illusory inasmuch as the candidate does not know the ground on which he has been rejected.

70. Insofar as the submission of learned Standing Counsel that the opinion of the Medical Board and the Appellate Medical Board is based on expert opinion hence it would not be appropriate for this Court to interfere under the jurisdiction of Article 226 of the Constitution. I do not agree with the said submission. The Supreme Court in the case of Veer Pal Singh v. Secretary, Ministry of Defence, (2013) 8 SCC 83 has considered the same issue. The Court has held that it is true that the opinion of the expert should be respected but it should not be worshiped. Relevant part of the judgement reads as under:

"10. Although, the courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the decision taken on the basis of such opinion. What needs to be emphasised is that the opinion of the experts deserves respect and not worship and the courts and other judicial/quasi-judicial forums entrusted with the task of deciding the disputes relating to premature release/discharge from the army cannot, in each and every case, refuse to examine the record of the Medical Board for determining whether or not the conclusion reached by it is legally sustainable."

71. The Supreme Court in recent cases has emphasised the need to record reason by the Medical Board. In the case of Union of India and others v. Manjeet Singh, (2015) 12 SCC 257 has observed as under:

"27. ...The requirement of recording reasons is not contingent on the duration of the Army service of the member thereof and is instead of peremptory nature, failing which the decision to board him out would be vitiated by an inexcusable infraction of the relevant statutory provisions."

72. The next question that arises for consideration is whether amended Appendix-5(3) (d) to Rule-15 of the Rules, 2008 is irrational, unreasonable and arbitrary. The object of the Rule is to provide a remedy by way of an appeal. The Rules, 2008 is a subordinate legislation. It is a trite law that the subordinate legislation may also be questioned on any of the grounds on which vires of a legislation is challenged. Although the subordinate legislation does not carry the same degree of immunity which is enjoyed by the Statute passed by the competent legislature.

73. The question whether a subordinate legislation can be questioned on the ground of unreasonableness and arbitrariness, was considered by Prof. Alan Wharam in one of his article "Judicial Control of Delegated Legislation: The Test of Reasonableness". His views were quoted with approval by the Supreme Court in the case of Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and others, (1985) 1 SCC 641. The Supreme Court held that the law in India about the arbitrariness comes within the sweep of Article 14 of the Constitution, hence a judicial review can also be made where a subordinate legislation is arbitrary and it offends Article 14 of the Constitution. In India, the Court may require the Government to exercise a power in a reasonable way in conformity with the spirit of the Constitution. The relevant paragraphs of the judgment in Indian Express newspapers (supra) are quoted as under:

"76. Prof. Alan Wharam in his Article entitled "Judicial Control of Delegated Legislation: The Test of Reasonableness" in 36 Modern Law Review 611 at pages 622-23 has summarised the present position in England as follows:

(i) It is possible that the courts might invalidate statutory instrument on the grounds of unreasonableness or uncertainty, vagueness or arbitrariness; but the writer''s view is that for all practical purposes such instruments must be read as forming part of the parent statute, subject only to the ultra vires test.

(ii) The courts are prepared to invalidate bylaws, or any other form of legislation, emanating from an elected, representative authority, on the grounds of unreasonableness, uncertainty or repugnance to the ordinary law; but they are reluctant to do so and will exercise their power only in clear cases.

(iii) The courts may be readier to invalidate bylaws passed by commercial undertakings under statutory power, although cases reported during the present century suggest that the distinction between elected authorities and commercial undertakings, as explained in Kruse v. Johnson, might not now be applied so stringently.

(iv) As far as subordinate legislation of non-statutory origin is concerned, this is virtually obsolete, but it is clear from In re French Protestant Hospital, 1951 Ch 567 : (1951) 1 All ER 938 (Ch D) that it would be subject to strict control." [See also H.W.R. Wade: Administrative Law (Fifth Edn.) pp. 747-748].

77. In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.

78. ...On the facts and circumstances of a case, a subordinate legislation be may struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19(1)(a) of the Constitution. It cannot, no doubt, be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant."

74. The Supreme Court has applied the same principles in declaring the subordinate legislation arbitrary and ultra-vires. Reference may be made to the judgments in the case of State of Uttar Pradesh and others v. Hirendra Pal Singh and others, (2011) 5 SCC 305, Air India v. Nargesh Meerza and others, (1981) 4 SCC 335, Indian Council of Legal Aid & Advice and others v. Bar Council of India and another, (1995) 1 SCC 732, C. Chandramohan v. Sengottaiyan and others, (2000) 1 SCC 451 and State of Uttar Pradesh and others v. Ravindra Kumar Sharma and others, (2016) 4 SCC 791.

75. In the case of Dev Dutta v. Union of India and others, (2008) 8 SCC 725, the Supreme Court was considering an office memorandum issued by the Ministry/Public Grievance and Pensions of the Union Government dated 10.11.1987, wherein it was provided that only adverse entry is to be communicated to the concerned employee and not the good entry. The Court held that the said communication violates Article 14 of the Constitution and declared all similar Rules/Government Orders/Office Memorandum in respect of all services under the State as illegal. The relevant part of the order reads as under:

11. ...It is well settled that no rule or Government instruction can violate Article 14 or any other provision of the Constitution, as the Constitution is the highest law of the land. The aforesaid office memorandum, if it is interpreted to mean that only adverse entries are to be communicated to the employee concerned and not other entries, would in our opinion become arbitrary and hence illegal, being violative of Article 14. All similar Rules/Government Orders/Office Memoranda, in respect of all services under the State, whether civil, judicial, police, or other service (except the military), will hence also be illegal and are therefore liable to be ignored."

"12. It has been held in Maneka Gandhi v. Union of India and anr. AIR 1978 SC 597 that arbitrariness violates Article 14 of the Constitution. In our opinion, the non-communication of an entry in the A.C.R. of a public servant is arbitrary because it deprives the concerned employee from making a representation against it and praying for its up-gradation. ..."

76. What emerges from the above mentioned cases is that manifest arbitrariness, unreasonableness and absurdity can also be a ground to strike down a provision of the subordinate legislation.

77. The next question arises whether a part of provision can be severed from the rest of the provisions, Bennion on Statutory Interpretation (Fifth Edition) at Page 258 states that:

"...Severance Where possible, the court will sever the provision which is ultra vires from the rest of the instrument. If the instrument consists of a collection of separate units, each of which is say a rule, a regulation or a bye law, severance is likely to be easier. However question of severance does not depend on a ''blue pencil test''. In accordance with principle, the court will sever the invalid provision from the valid notwithstanding that this cannot be done neatly by textual amendment."

78. Applying those principles in the cases in hand, I find that Appendix 5(3)(d) to Rule-15(f) of the Rules, 2008 is unreasonable and arbitrary as it does not give sufficient time to file an appeal and secondly, in absence of reasoned order any appeal is empty formality, thus, arbitrary and violates Article 14 of the Constitution.

79. I shall now consider the question regarding the fairness of Medical Board.

80. Learned counsel for the petitioners have strenuously urged that there was wide spread corruption and unfairness in the medical examination. The petitioners have brought on the record newspaper clippings and reporting with regard to a large number of serious allegations against the conduct of the Doctors, who were the members of Medical Board at the district level. The Court''s attention was also drawn to an FIR against the Doctors. It is stated that at the direction of the District Magistrate a raid was conducted on the members of Medical Board and huge amount of cash was recovered from them.

81. On the basis of those allegations, it was urged that the findings of Medical Boards are tainted and cannot be safely relied upon especially in the case of petitioners, who have qualified all the stages including physical efficiency test, which is most gruelling; a medically unfit person cannot succeed in those tests.

82. In my view, on the basis of above mentioned material on record it is difficult to hold that the entire selection is vitiated on the said ground.

83. However, these materials on the record raise serious question about the credibility of functioning of the Medical Board. In the matter of recruitment of constables the constitution of Medical Board which decides the appeal of the candidates against district level Medical Board, is not provided. The amended Appendix-5(3)(d) to the Rules, 2008 only provides that appeal can be filed on the same day. It further provides that it should be disposed of by the Medical Board constituted for the purpose within one month.

84. Relevant would it be to mention that Rule 15 and its Appendix-5, of the Rules, 2008 are completely silent about the constitution of Appellate Medical Board. In instructions, which is on the record, it is stated that the Appellate Medical Board is constituted in terms of Medical Manual. Paragraphs 176 to 186 of Chapter-V of the Medical Manual deals with the Rules for the grant of medical certificates and the payment of medical fees. Paragraph-182 provides that if in any case the candidate is not satisfied with the decision of Civil Surgeon, he may appeal to the Divisional Medical Board. Paragraphs 182 and 182-A of the U.P. Medical Manual is quoted herein below:

"182. If in any case a candidate is not satisfied with the decision of the Civil Surgeon he may appeal to the Divisional Medical Board through the head of the office or department concerned, and the latter may, at his discretion, accept and forward the appeal or refuse to do so, provided that he shall refuse to forward the appeal in any case in which a member of the Divisional Board had already expressed or recorded an opinion unfavourable to the employment of the candidate. When an appeal is allowed the candidate must appear, at his own expense, at the next meeting of the Board.

182-A. There will be no right of appeal from a Medical Board special or standing: but if State Government are satisfied, on the evidence produced, of the possibility of an error of judgment in the decision of the first Medical Board, it will be open to Government to allow an appeal to a second Medical Board.

Note: Such appeal should be preferred within one month from the date of issue of the communication in which the findings of the medical authority are communicated to the candidate. If the appeal is supported by a medical certificate as a piece of evidence about the possibility of an error of judgment in the decision of the medical authority, such certificate will not be taken into consideration unless it contains a note by the medical practitioner who issues such a certificate to the effect that it has been given in full knowledge the fact that the candidate has already been rejected as unfit."

85. Learned Standing Counsel has stated that at the Divisional Level the Appellate Medical Board is constituted by the Deputy Director, Medical & Health. In the Board there are three doctors.

86. It has to be borne in mind that the petitioners have qualified all the stages save and except last stage i.e. Medical examination. If a Statute provides the appeal then the grievance of the aggrieved person must be considered objectively and fairly and the order of the appellate board should not be a rubber stamp order and skeletal.

87. Therefore, in my view, the appellate Medical Board should be constituted comprising experts of subjects and it should fairly reexamine the candidates who have preferred the appeal against their rejection on medical ground.

88. Now the question arises about composition/constitution of appellate Medical Board. In the case of Arvind Kumar Sonkar v. State of U.P. and others, Special Appeal No. 1573 of 2007 and other connected matters, by the consent order, a Medical Board was directed to be constituted consisting of three doctors, one from a Government Hospital, second from Sanjay Gandhi Post Graduate Institute, Lucknow and the third from the King George Medical College, Lucknow. In the said case also, appellants were the candidates for appointment on the post of constables and their services were dispensed with on the ground that they were medically unfit. But the said judgment has been distinguished by a Division Bench in the case of Union of India and others v. Parul Punia, 2016(2) ADJ 14 (DB) on the ground that Arvind Kumar Sonkar(Supra) was an order based on consent. The Division Bench in Parul Punia (supra) held that 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 that provided in the statute, are allowed. This would ordinarily be impermissible. However, the Court directed that a review Medical Board shall reassess the case of the candidates who were rejected on medical ground. Paragraph-11 of the said order reads as under:

"11. We, accordingly, allow the special appeal and set aside the judgment and order of the learned Single Judge dated 26 November 2015. Instead and in place of the direction issued by the learned Single, we direct, that a review medical Board shall reassess the case of the respondent and shall upon a fresh medical examination determine whether the respondent meets the medical parameters for recruitment. This exercise shall be carried out no later than within a period of one month of the receipt of a certified copy of this order. Based on the report of the review medical Board, further action as may be warranted in law shall thereafter be taken by the authorities for considering the candidature of the respondent based on the assessment."

89. My attention has been drawn to a recent order of this Court in a batch of writ petition led by Ravi Shankar Dubey v. U.P. State Road Transport Corporation and others, Writ-A No. 38185 of 2015, wherein the Court has directed the U.P. State Road Transport Corporation to re-constitute State Medical Board comprising three members in the following manner.

"1. Out of the three members while one member shall be the Director General of Medical Health, the other two members should belong to the particular field of medicine relating to the employee before it;

2. One member shall be of the rank of Head of Department of the particular field of medicine relating to the employee before it.

3. The third member should not be below the rank of Professor of the particular field of medicine relating to the employee before it."

90. In the said case the facts were slightly different it was in the context of unfitness of the existing employees, however, in that case also the employees have doubted the credibility of medical reports.

91. In view of the above facts, in my view, it would be appropriate that in the existing Appellate Medical Board at the Divisional level one doctor shall be of the rank of Professor of a Medical College nominated by the Principal of the concerned College. The said direction is necessary to maintain transparency and credibility of the Medical Board.

92. Insofar as the submission of learned Standing Counsel that physical fitness is one of the essential requirements for the post in question is concerned, it goes without saying that in Civil Police, Armed Police and other branches of Police Force, physical fitness is one of the basic requirements which cannot be diluted. Any compromise with the fitness will adversely affect the efficiency of the Police Force.

93. After careful consideration of submissions of learned counsel for the parties and the material on record, for the reasons stated above, I hold that the provision for filing appeal on the same day as contained in Appendix-5(3)(d) to Rule-15(f) of the Uttar Pradesh Police Constables and Head Constables Service Rules, 2008, is unconstitutional and arbitrary being violative of Article 14 of the Constitution.

94. In view of the above, following orders are passed:

(i) The provision of Appendix-5(3)(d) to Rule-15 of the Rules, 2008, "on the day of the examination itself. No appeal with respect to the medical examination shall be entertained if the Candidate fails to appeal on the day of his medical examination and announcement of the result of the same" is struck down as arbitrary and ultra vires.

(ii) A fresh Appellate Medical Board shall be constituted within two months, as directed above. A candidate, who is aggrieved by the order of the Medical Board, may file an appeal to the Appellate Medical Board within two weeks. The freshly constituted Appellate Medical Board shall continue in future recruitments also until appropriate amendment is made in the Rules, 2008;

(iii) In the existing Appellate Medical Board at the Divisional level one doctor shall be of the rank of Professor of a Medical College nominated by the Principal of the concerned College.

(iv) The petitioners'' appeals shall be considered by the newly constituted Appellate Medical Board.

95. The writ petitions are, accordingly, partly allowed.

96. Parties will bear their own costs.