R.M.Sahai, J. - (1.) LACK of co -ordination between Medical and Health department of State Government and Police Training College, Moradabad has resulted in an awkward situation in which petitioners who after succeeding in sub -inspectors examination of 1982 had been declared medically unfit were reexamined once by medical board and then by specially constituted medical board which declared them fit, consequently they were given training and posted as well. But after lapse of nearly six months some one woke up which ultimately ended with termination of their services. And why because 'the petitioners' therefore, having been declared unfit by the two previous medical boards, their medical examination for the third time was totally unauthorised thereby making their entry into government service ab initio void (paragraph 9 of the counter affidavit). But the most astonishing reason was, the petitioners alongwith few other candidates were directed to appear before the State Medical Board at Lucknow on 9 -3 -1984 under some misconception and after being declared fit by the aforesaid Board, they were allowed to join the Police Training College II, Moradabad and undertake their training; But since their medical examination for the third time was against the provisions of the U.P. Medical Manual, it was found totally unauthorised. There was also no government order for the third medical examination of the candidates who had been declared unfit by two previous Medical Boards. In the instant case, the petitioners were already examined by two previous Medical Boards, duly constituted by the State Government, and declared unfit and as such their entry into the Government service became ab -initio -void as would be evident from Annexure CA -I to this Affidavit. For the sake of convenience, the relevant para 182 -A of the U.P. Medical Manual is quoted below: - - Para 182 -A There will be no right of appeal from a Medical Board, special or standing, but if 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 an 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 of the fact that the candidate has already been rejected as unfit (paragraph 10). As this appeared little alarming that a special Medical Board would be constituted followed by radiogram from Deputy Inspector General, Police Training College Moradabad without any order of Government but since the responsibility for stating so on oath had been taken by no less a person than Deputy inspector General of police it was considered expedient to permit opposite parties to file supplementary affidavit specially because from letters dated 13th January 1983 by Special Secretary Health and project co -ordination addressed to Director of Medical and Health Services to get special board constituted for medical examination of 114 appellants and letters dated 26th February, 1983 of the Director of Chief Medical Officer to constitute such Board and held its sitting on 9th March followed by radiogram issued by Deputy Inspector General Police Training College Moradabad to all 114 appellants left no room for doubt that averment was made either under mistaken legal advice or misconception. In pursuance of this order supplementary counter -affidavit was filed and although what was said earlier has been reiterated which in no manner improved upon the earlier situation, yet the explanation and details given in it have facilitated adjudication of both legal and factual issues.
(2.) WHAT transpires after filing of those affidavits is that petitioners along with others were declared medically unfit by the Medical Board at Moradabad. Such candidates filed appeals. Some of them approached this Court as well in which an interim order was passed on 5th January, 1983 directing opposite parties to permit petitioners to resume their training subject to the result of writ petition. In yet another petition an undertaking was given by the Chief Standing Counsel that appeal of petitioner for constituting another board shall be decided within fortnight, This appears to have happened on 11th January, 1983 and on same day the Chief Standing Counsel wrote a letter to the Medical Secretary and the Home Secretary informing them that, the petition had been dismissed on his undertaking that appeals shall be decided within fortnight. On 18th January Sri S.R. Pandey Joint Director Health and Welfare department wrote a letter to Sri N.D. Maheshweri Joint Secretary Health Department that it has been decided that State Medical Board shall hold its sitting on 23rd January, 1983 for examining the sub -inspectors selected for training, consequently information may be sent to all the candidates. It was also mentioned that the board was being constituted on letter dated 15th January 1983 of the Chief Medical Officer Lucknow and letter dated 11th January 1983 of Chief Standing counsel. This letter was followed by a letter sent on 23rd January 1983 to Deputy Inspector General of Police Allahabad informing him that the board shall sit on 23rd January 1983 and information may be sent to all the candidates. In pursuance of it the board did sit on 23rd January 1983. It examined sixty five candidates. Out of it 42 were declared fit and 23 remained unfit. The Board again met on 30th January 1983 in which out of fifteen candidates eleven were declared fit. The Board met again on 7th February 1983 and declared all the three candidates who appeared before it to be unfit. With this came to an end examination of candidates by a State Medical Board which has been described as second examination. Prior to this that is the beginning of examination by State Medical Board in pursuance of letter dated 18th January 1983, a letter had already been sent on 13th January 1983 by Sri N.D. Maheshwari Joint Secretary to the Director, Social Welfare that in view of undertaking given by the Chief Standing counsel and preferring of appeals by numerous candidates to State Government under Para 182A of Medical Manual the Government has been pleased to direct constitution of special Medical Board. He further directed that the Board be constituted by him but it shall not have any member of the earlier board. It was mentioned that list of all those 114 candidates who had applied for re -examination was being attached. On this letter the Director wrote on 26th February 1983 to Chief Medical Officer Lucknow that the Special Medical Board shall sit on 9th March for re -examining all those candidates who had earlier been declared unfit and list of such appellants that is 114 is being attached. It was stated that authorities of police department may also be intimated by him at his end so that all concerned candidates may be informed. This resulted in radiogram by Deputy Inspector General of Police, Police Training college II Moradabad, And petitioners who had earlier been declared unfit even by the second board were declared fit and on communication of the result by Board the Deputy Inspector General of Police, Police Training College Moradabad issued letters informing that they having been declared fit should report for training. Some of them even secured position. They were then posted in January 1984. And then when all appeared to have settled they received orders in July 1984 that their services stand terminated. Basis for this is letter dated 4th February 1983 by Sri Shekhar Sinha Deputy Secretary Administrative Department to the Director Police Training. The subject of letter was that some candidates who had been declared medically unfit twice were given third opportunity in 1983 without permission of State Government. In the contents it is mentioned that in reference to his letter dated 16th November 1983 he had been directed to inform that there was no such order of State Government that those candidates who had been declared unfit twice should be permitted to appear third time for medical examination. And the medical examination which had been done third time for some candidates were wholly illegal and unauthorised, therefore, there was no justification to accept these candidates as medically fit who had been declared so after third examination. Consequently entry of such candidates in service was void ab initio. And appropriate proceeding may be taken against such candidates. Narration of facts unfolds sorry state of affairs. In fact to borrow the proverb the one hand was not aware of what the other was doing. What was being done by one wing of department was not known to other. And instead of realising the mistake and injury mental, physical and financial to petitioners they have made them scapegoat by using such strong expressions as illegal and void ab -initio. To begin with the legality it has been seen that medical board constituted on 9th March 1983 was a board constituted under paragraph 182 -A by the Governor after considering appeals of 114 candidates who had been declared unfit. One may describe it as the third board but it was the only board which could be considered to have been created in accordance with Medical Manual which has been extracted earlier. It did not debar anyone from being examined. In fact the direction was to examine all the 114 appellants. There was no restriction as has been tried to be made out during arguments or in the counter affidavit Even assuming everything in favour of opposite parties does paragraph 182A debar third examination. It is only a guide -line with anxiety to attain finality except in special circumstances. It does not curtail the power of State Government which can in appropriate case direct re -examination to obviate possibility of error. Could there be a more glaring case than this where out of 83 candidates examined by the second board as many as 53 were found to be fit. That is more than 50%. If such was the percentage then less said the better. And a third examination even if it would have been irregular was not only necessary but must. The objective of the rule is to obviate 'possibility of an error' of judgment by Medical Board. That it was in abundance hardly admits of any doubt.
(3.) A word about second board. It was constituted by Joint Director Health and Social welfare. Under the manual power is vested in Government and not the director. The undertaking given by the Chief Standing counsel was to get the appeals, for constitution of board, decided within fifteen days and not to get the board constituted within that time. The Director, therefore, was not justified in constituting second board without any order of State Government. If there was any illegality it was in constitution of second board. It may, however, be clarified that these observations have been made to demonstrate that constitution of board on 9th March 1983 did not suffer from any infirmity, and not to affect the candidates who were examined by second board and were found to be fit.;