Single Judge dismissed writ petition challenging rejection of petitioner's request for second opportunity to appear in physical test due to appendicitis. Court held established ratio binds it to deny such relief.
Petitioner's prayer for second opportunity to appear in physical efficiency test denied and writ petition dismissed.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 13621/2018
Ravi Lohani S/o Sh. Narendra Kumar, Aged About 24 Years, In Front Of Lk Tower, Near Kumar Pyau, Chopasani Housing Board, Jodhpur.
----Petitioner
Versus
----Respondents
| For Petitioner(s) | : Mr. Karan Parihar |
|---|---|
| For Respondent(s) | : Mr. Manish Vyas, AAG a/w |
| Mr. Kailash Choudhary |
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
08/01/2024
2. any other appropriate writ, order or direction, which this Hon'ble Court may deem just and proper in the circumstances of the case, may kindly be passed in favour of the petitioner. "
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Constable-2018. The only controversy is that the after qualifying the written test, the petitioner developed appendicitis and therefore, was operated on 01.09.2018 and thus, could not appear in the Physical Test to be scheduled on 06.09.2018. Learned counsel further submits that it was not in the hands of the petitioner as he suffered physical ailment which coincided with the Physical Test of the Constable Recruitment, 2018 and thus, a lenient view ought to be taken by the respondents and the petitioner should be given second opportunity.. He further submits that the petitioner had represented will in advance in time for the issue in question before the respondents.
i. G. Sajeev Sathiyan Vs. The Director General of Police & ors. (W.P. (MD) No.13830/2020) decided on 05.11.2020 by Hon'ble Madras High Court (Madurai Bench).
ii. R. Devika Vs. The Chairman, Tamil Nadu Uniformed Recruitment Board and Ors. (Writ Petition No.30538 of 2018 and WMP No.356131 of 2018), decided on 07.01.2019 by Hon'ble Madras High Court (Madurai Bench).
iii. Monu Kumari Vs. Staff Selection Commission & Ors. (W.P. (C) No.925/2017), decided on 03.04.2019 by Hon'ble Delhi High Court.
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decided on 14.03.2023 by this Hon'ble Court at Jaipur Bench; the relevant portion thereof reads as under :-
"11. On facts of the present case, the ratio of law as expounded in cases of Sunil Kumar (supra) & Dropadi Jyani (supra) stands squarely applicable. In case of Sunil Kumar (supra) vide order dated 18.09.2018, learned Single Judge has observed as under:
“The petitioner has participated in a recruitment process, where the appointments are required to be granted based on inter se merit of the candidates by including the marks obtained at Written Examination and PET subject to their fulfilling PST. Though unfortunate it is that the petitioner suffered accident and consequential knee surgery, the PET of the petitioner cannot be postponed indefinitely, i.e. till such time the petitioner declared fit to undergo PET.
A bare look at the requirements of PET indicates that the same is quite stressful, wherein a candidate is required to run for 5 kilometers within maximum 25 minutes, based on which, the marks are awarded. The Doctors have presently advised the petitioner to avoid running in any form for next 3 months and, therefore, it is absolutely speculative as to when the petitioner would gain medical fitness to undertake 5 kilometers running and, therefore, the plea seeking deferment of the PET of the petitioner cannot be countenanced.”
The aforesaid order/judgment dated 18.09.2018 has been affirmed by the Division Bench in DB Special Appeal (Writ) No.1685/2018 vide order dated 14.11.2018 and held as under:
“Successfully clearing the written examination for being appointed as a Constable GD the problem which the appellant faced was of not being able to participate at the physical efficiency test to be held on 10.09.2018. During the physical efficient test, the petitioner was required to run 5 kms. in 25 minutes. The appellant suffered an accident and had to undergo operation of the left knee on 03.08.2018 he was advised not to run for the next three months.
2. The appellant made a request to defer he being subjected to the physical efficient test, the department refused because
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this would have delayed drawing up to the final merit list and those who had cleared the written examination and had also cleared the physical efficient test. The appellant filed a writ petition relying upon clause 12 of the standing order, which reads as under:
12. Medical Examination:-
Immediately after the declaration of the merit list, candidates whose names appear in the merit list shall be required to undergo a Medical Test by a Government Medical Officer. The Appointing Authority shall move the Chief Medical and Health Officer/Principal Medical Officer concerned to detail one or more medical officers, as required, for this purpose as per enclosed proforma (Annexure E). Candidates who are found temporarily unfit and whose defect can be rectified within 6 months as per the opinion of the Medical Officer shall be eligible for appointment after the said period provided they are found fit by medical board. Candidates who fail to conform to the prescribed standards of medical fitness even on re-examination within stipulated time shall be declared medically unfit for appointment and their candidature shall stand cancelled.
3. The learned Single Judge has correctly pointed out that the said clause pertained to the requirement of government servants to be declared medically fit after being medically examined before they are to joint government service. The clause simply records that those fond temporarily medically unfit and whose defects can be rectified within six months, shall be eligible for appointment after said period provided they are found to be fit by the medical board. The clause does not relate to deferment of undergoing physical examination test. (Emphasis Supplied) 12. The Division Bench, in case of Dropadi Jyani (supra), followed and placed reliance on the observations made in case of Sunil Kumar (supra), dismissed the special appeal vide order dated 30.01.2020, declining to accord any second chance for the Physical Test.
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13. The ratio of law as expounded in the case of Sunil Kumar (supra) of learned Single judge and in case of Dropadi Jayani (supra) of the Division Bench, have been followed by the Division Bench, recently in case of State of Rajasthan & Anr. Vs. Bharat Yadav & Anr. in DB Special Appeal Writ No.1129/2022 vide order dated 09.11.2022 wherein the order of learned Single Judge, allowing writ petition and issuing direction to respondents to re-conduct the PET of petitioner in respect of recruitment for the post of Constable, was quashed and special appeal was allowed. Further, Review Petition (Writ) No. 218/2022 preferred to review the final order dated 09.11.2022, came to be dismissed vide order dated 03.02.2023 and while dealing the alternative argument of learned counsel for review petitioner, which has also been made here that since petitioner had qualified the written examination, but could not appear in PET due to meeting with an accident and suffering an injury/illness, therefore, sympathetic view to allow him in PET be taken. The Division Bench has observed as under –
“We find no force in the alternative argument of the counsel for the Review Petitioner that sympathetic view be taken in favour of the petitioner. Sympathy alone cannot be a ground to grant relief to the petitioner. It is well settled principle of law that sympathy which is not within the precincts of law, cannot be the basis to grant something which is otherwise impermissible. The relief sought for cannot be granted to the review petitioner by adopting a sympathetic view.”
14. At this juncture, this Court deems it just and proper to make a clarification that in case of Sunil Kumar (supra), the appellant relied upon the Clause 12 of the Standing Order, seeking deferment of Physical Efficiency Test and the Division Bench, in its order dated 14.11.2018, has observed that the Clause 12, extracted in the order itself, does not relate to deferment of undergoing Physical Efficiency Test. In the present S.O. dated 03.09.2021, Clause 12 pertains to medical examination in similar terms finds place, but such Clause talks about medical examination of those candidates
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who have declared successful on merits after qualifying the written test and PET/PST. The medical examination, conducted under Clause 12 is not applicable before completion of selection process and at the stage of appearing for PET. Thus, it is made clear that the Clause 12 of the S.O. dated 03.09.2021, does not come to rescue to the petitioner(s) for seeking deferment of the PET.
15. For the reasons and discussions made hereinabove, the prayer of petitioner(s) to provide second chance/opportunity for PET is not acceptable and instant writ petitions, having no substance, are hereby dismissed. No costs.
16. Interim stay order(s) passed in favour of petitioner(s), if any, stand(s) vacated accordingly.
17. Stay application and other pending application(s), if any, stand disposed of.
18. Copy of this judgment be placed in each file."
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judgment may not help the petitioner, and thus, the present petition is dismissed.
(DR.PUSHPENDRA SINGH BHATI), J.
83-Sudheer/-
2 issues framed by the court
Whether a medical condition preventing appearance in a physical test entitles a qualifying candidate to a second chance for the test.
Whether sympathy can be a ground to grant relief impermissible under established legal principles.
Colour shows how this judgement treated each authority
G. Sajeev Sathiyan Vs. The Director General of Police & ors.Referred¶23
G. Sajeev Sathiyan Vs. The Director General of Police & ors. (W.P. (MD) No.13830/2020)
R. Devika Vs. The Chairman, Tamil Nadu Uniformed Recruitment Board and Ors.Referred¶24
R. Devika Vs. The Chairman, Tamil Nadu Uniformed Recruitment Board and Ors. (Writ Petition No.30538 of 2018 and WMP No.356131 of 2018)
Monu Kumari Vs. Staff Selection Commission & Ors.Referred¶25
Monu Kumari Vs. Staff Selection Commission & Ors. (W.P. (C) No.925/2017)
Deepak Kumar Vs. State of Rajasthan & ors.Followed¶27
Deepak Kumar Vs. State of Rajasthan & ors. (S.B.Civil Writ Petition No.17092/2022)
Sunil Kumar Vs. State of RajasthanFollowed¶58
Sunil Kumar Vs. State of Rajasthan
Dropadi Jayani Vs. State of RajasthanFollowed¶58
Dropadi Jayani Vs. State of Rajasthan (D.B. Special Appeal Writ No.1310/2019)
Ravi Lohani
State Of Rajasthan
PUSHPENDRA SINGH BHATI
As recorded by the court registry
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