CWP/2198/2019 on 31 December 2019

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 2198 of 2019

Date of decision: 31.12.2019 _____________________________________________________ H.P. Public Service Commission

…..Petitioner

Versus

Dipika Chandel & others

…Respondents ________________________________________________________

Coram:

The Hon’ble Mr. Justice L. Narayana Swamy, Chief Justice The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 __________________________________________________ For the petitioner : Mr. Vikrant Thakur, Advocate.

For the respondents: Mr. Dilip Sharma, Senior Advocate with Ms. Shikha Rajta, Advocate, for respondents No. 1 to 3.

Mr. Ashok Sharma, Advocate General with Ms. Ritta Goswami, Mr. Adarsh Sharma, Mr. Nand Lal Thakur, Additional Advocates General, for respondent No. 4.

L. Narayana Swamy, Chief Justice (Oral)

By way of this writ petition, the petitioner-H.P. Public Service Commission (for short ‘the petitioner-Commission’) challenges the order dated 26th July, 2019, passed by the Himachal Pradesh Administrative Tribunal (for short ‘the Tribunal’) in Original Application No. 2664 of 2019, titled as Dipika Chandel and others versus H.P. Public Service Commission and others, whereby the 1 Whether the reporters of Local Papers may be allowedto see the judgment?

Medical Superintendent, Deen Dayal Upadhyaya Zonal Hospital, Shimla was directed to constitute a Medical Board for chest measurements (non-expanded and expanded) of the applicants- respondents No. 1 to 3 herein, in terms of Regulation 9 of Appendix III, Regulations relating to the Physical Examination of Candidates (hereinafter to be referred as ‘the impugned order’)

2. The case of the petitioner-Commission, in brief, is that Advertisement Notice dated 23rd March, 2017 (Annexure P-2) was issued to fill up 50 posts of the Range Forest Officers. For the said posts, main written examination was conducted and thereafter, the result of the same was declared on 02.01.2019. The further case of the petitioner-Commission is that Physical Standard Test was held on 18.01.2019 and 19.01.2019. The private respondents appeared before the Medical Board constituted by the petitioner-Commission, but they could not succeed.

3. Being aggrieved by the decision of the Medical Board, the private respondents filed Original Application No. 372/2019 before the Tribunal, which was disposed of vide order dated 20th May, 2019, directing the Principal, Indira Gandhi Medical College, Shimla, to constitute a Medical Board to carry out chest measurements (expanded and unexpanded) of the private respondents. In compliance to the said order, the Medical Board was constituted. The private respondents appeared before the

Medical Board, but on measurement, they were again declared unsuccessful.

4. After being unsuccessful in Physical Measurement Test, the private respondents again filed Original Application No. 2664 of 2019 before the Tribunal, subject matter of this writ petition, which was disposed of vide order dated 26th July, 2019, directing the Medical Superintendent, Deen Dayal Upadhyaya Zonal Hospital, Shimla to constitute a Medical Board for chest measurements (non-expanded and expanded) of the private respondents in terms of Regulation 9 of Appendix III, Regulations relating to the Physical Examination of Candidates. Hence, this writ petition.

5. Learned Counsel for the petitioner-Board submits that firstly, the private respondents were declared unsuccessful in the Physical Standard Test conducted by the petitioner-Commission and thereafter, they were again declared unsuccessful by the Medical Board constituted by the Indira Gandhi Medical College, Shimla, in pursuance to the directions issued in Original Application No. 372 of 2019 and interim directions issued by the Tribunal in Original Application No. 2664 of 2019. Thereafter, while disposing of Original Application No. 2664 of 2019, a direction was issued by the Tribunal to the Medical Superintendent, Deen Dayal Upadhyaya Zonal Hospital, Shimla to constitute a Medical Board for the chest

measurement in terms of the instructions issued by the Department of Personnel and Training, Government of India. He submits that there is no provision to constitute a fresh Medical Board time and again. He further submits that the approach of the Tribunal is not based on any substantive reason, because the very method for which the private respondents are asking for, is with respect to the services of All India Cadres and Civil Services Examination. Therefore, he prays that the impugned order be set aside.

6. Per contra, learned Counsel for respondents No. 1 to 3 submits that the respondent-State has not framed its own Guidelines for chest measurement for male and female for selection to the post of Range Forest Officer and in the absence of such Guidelines, the procedure prescribed in Appendix-III (Regulations relating to the Physical Examinations of Candidates) has been followed for selection to the post of Range Forest Officdr. He further submits that the chest measurement was rightly conducted by the Medical Board on the basis of ‘Anthropometry Procedure Manual’. He prays that the writ petition be dismissed.

7. Mr. Adarsh Sharma, learned Additional Advocate General for respondent No. 4 submits that at present, the respondent-State follows the provisions as prescribed under Regulation 9 of Appendix-III, notified by the Department of

Personnel and Training, Government of India, for measurement of chest of male and female for selection to the post of Range Forest Officer and accordingly, the Fitness Certificates are issued.

8. We have heard learned Counsel for the parties and have carefully examined the entire record.

9. From the perusal of the record, it is evident that the case of the private respondents before the Tribunal in Original Application No. 2664 of 2019 was that their chest measurement has not been carried out in terms of Regulation 9 of Appendix-III, notified by the Department of Personnel and Training, Government of India. The said Original Application was disposed of by the Tribunal vide order dated 26th July, 2019, directing the Medical Superintendent, Deen Dayal Upadhyaya Zonal Hospital, Shimla to constitute a Medical Board for chest measurements (non-expanded and expanded) of the private respondents in terms of Regulation 9 of Appendix III, Regulations relating to the Physical Examination of the Candidates. These Guidelines have been issued by the Government of India and are meant for the Civil Posts. The Tribunal has not directed the Selection Committee to select the private respondents to the post of Range Forest Officer, but only directed the petitioner-Commission to consider the case of the private respondents and to issue Medical Fitness Certificates to them, by following the procedure prescribed under Regulation 9 of

Appendix III, Regulations relating to the Physical Examination of Candidate, notified by the Department of Personnel and Training, Government of India.

10. The private respondents had approached the Tribunal seeking direction to the respondent-Board to measure their chest (non-expanded and expanded) as per the prescribed procedure. The Tribunal has passed the impugned order after going through the prescribed procedure, more particularly Regulation 9 of Appendix III, Regulations relating to the Physical Examination of Candidate. Thus, we do not find any infirmity with the impugned order passed by the Tribunal. Moreover, the petitioner-Commission is not an aggrieved party to challenge the impugned order passed by the Tribunal since no direction was issued by the Tribunal to select the private respondents to the post of Range Forest Officer.

11. Since the respondent-State has not framed its own Guidelines for chest measurement for male and female for selection to a civil post, the H.P. Public Service Commission is required to follow the Guidelines as prescribed under Regulation 9 of Appendix III, Regulations relating to the Physical Examination of Candidate. It is apt to reproduce the said guidelines herein below:- “9. The candidate’s chest will be measured as follows:-

He/she will be made to stand erect with his/her feet together and to raise arms over his/her head. The tape will be so adjusted around the chest that its upper edge touches the inferior angles of the shoulder blades behind and lies in the same horizontal plane when the tape is taken round the chest. The arms will then be lowered to hang loosely by the side and care will be taken that the shoulders are not thrown upwards or backwards so as to displace the tape. The candidate will then be directed to take a deep inspiration several times and the maximum expansions of the chest will be carefully noted and the minimum and maximum will then be recorded in centimeters 84-89, 86-93.5 etc. In recording the measurements of fractions of less than half a centimeter should be rounded off to zero and more than half to one. N.B.- The height and chest of the candidates should be measured twice before coming to a final decision.” .

12. It is submitted by the learned Senior Counsel for respondents No. 1 to 3 that the Medical Board constituted at Deen Dayal Upadhayay Zonal Hospital, Shimla has already submitted its report and issued the Medical Fitness Certificates to respondents No. 1 to 3. The petitioner-Commission is directed to consider the case of respondents No. 1 to 3 and pass appropriate orders, in accordance with law, within a period of three months from the date of receipt of a copy of this order.

13. With these observations, the writ petition is dismissed, so also the pending application(s), if any.

(L. Narayana Swamy)

Chief Justice.

December 31, 2019

(Jyotsna Rewal Dua) (hemlata)

Judge.