JUDGMENT
A.K. Tripathi, J.
Page 2251
1. Heard learned Counsel for the petitioners as well as the counsel for the respondents.
2. There are six petitioners before this Court. All of them were aggrieved because they were not selected as constables (General Duty) in Border Security Force pursuant to the advertisement which was issued by the respondents. The recruitment was for the year 2001. All these petitioners were declared unfit medically but they made grievance that the medical test conducted on them was not in order and they have been treated in a slip-shod manner. They challenged the decision of the respondent authorities to declare these petitioners unqualified for appointment based on ground of medical unfitness. This Court vide order dated 26.3.2004 directed constitution of a fresh Medical Board for re-examination of these petitioners by newly constituted medical Board.
3. The writ application was kept pending awaiting the decision of the newly constituted Medical Board.
4. It is stated that registered notices were issued to all the six candidates and pursuant to the same all the petitioners appeared before the newly constituted medical board except petitioner No. 4. The newly constituted medical board has given its opinion and the same has been brought on record as annexures B/1 to B/5 which is attached with second supplementary counter affidavit filed on behalf of the respondents. The medical board in its opinion has found all the five candidates fit for appointment which is apparent from annexures B/1 to 5.
Page 2252
5. In so far as the petitioner No. 4 is concerned, the respondent authorities have brought on record evidence to show that the registered notice was also sent to him but since he chose not to appear therefore he was not put before the medical board. Petitioner No. 4 has brought evidence on record to show that he was not served with any notice and in fact he gave a legal notice to the authority when he learnt that other persons have already been served with notice and they were put before the newly constituted medical board. The respondents have brought annexure-C which is dated 6th June, 2004. On perusal of annexure-C it seems that the respondents had issued a notice to petitioner No. 4 and the address given therein is as under: Kailash Prasad Jaiswal S/o Shri Subhash Chandra Jaiswal VPO-Ramgarh Distt-Bhagalpur (Bihar) 853204. The petitioner contends that since the respondents gave a wrong address in the registered notice therefore it seems that the notice was not served upon him. The petitioner brings to my notice the admit card which was issued in his favour and the address given in the same is Kailash Prasad Jaiswal S/o Shri Subhash Chandra Jaiswal At+PO Rangra, Thana-Gopalpur, Dist: Bhagalpur. The petitioner contends that since the respondents themselves gave incomplete address or a wrong address, therefore, their stand now that the petitioner chose not to appear is misplaced.
6. This Court had already taken note of that vide order dated 26.3.2004 this Court had directed that all the petitioners will be put before the newly constituted medical board, petitioner No. 4 could not be placed before the medical board in question in the given circumstances. Fault cannot lie with the petitioner. His case will have to be considered by the respondents by placing him before the medical board at par with one which examined the case of others petitioners.
7. In so far as the case of other petitioners are concerned, since annexure-B series indicate that the medical board in question had opined that these petitioners are otherwise fit to be appointed under B.S.F. than they will have to be taken into service based on the opinion of the medical board which was constituted under the direction of this Court.
8. In the second supplementary counter affidavit the respondents have taken a position that the disqualification of the petitioners in 2002 was for various reasons indicated in the opinion of the then medical board. They contend that the medical board which was constituted to examine the petitioners was on a very limited issue and that issue was whether the so called varicose vein came in the way of the petitioners appointment. They take stand that since the newly constituted medical board examined the petitioners only with that defect in mind, therefore, the opinion of the medical board is not binding upon them and the petitioners cannot be appointed based on the opinion of the newly constituted medical board. This Court would have accepted the plea of the respondents provided they would have taken objection before the newly constituted medical board that the petitioners ought to be examined in entirety and not limited to the problem of varicose Vein. The order of the Court was very much before the respondents and if the respondents had any objection then they ought to have moved the Court for further clarification. The order is accepted in its form and they also constituted new medical board in terms of the direction of the Court and now after the exercise have been completed it is not open to the respondents to question the opinion of the medical board. They will have to abide by the order of this Court as well as the opinion of the newly constituted medical board.
Page 2253
9. This being the position in the given case this Court accordingly directs the respondents to accept the joining of the five petitioners.
10. In so far as the petitioner No. 4 is concerned, this Court directs that he shall present himself before the authority in question i.e. office of the Deputy Inspector General Border Security Force, Training Centre & School Meru Camp, Hazaribagh on 30th April, 2007 and the respondents shall thereafter put him before a Medical Board on that day or any other agreed day. Out come of the opinion of the Medical Board shall govern the case of petitioner No. 4.
11. This writ application accordingly stands allowed with the above directions.