MUKESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The challenge in this petition filed under Article 226 of the Constitution is to the order dated 28.2.2005 (Annexure P-3) passed by respondent No. 2 declining the request made by the petitioner to appoint him on the post of Constable, Indo Tibet Border Police (for brevity 'ITBP'). It is appropriate to mention that 131 posts of Constables by the ITBP were advertised on 16.10.2004. The total number of posts available for Constable (Animal Transport) was 14. The petitioner was at No. 4 in the waiting list on the basis of written and viva voce examination held by the Commanding Officer. Two out of 13 posts remained unfilled and one candidate out of the wait list candidates did not join whereas the other one was declared medically unfit. When the petitioner was subjected to medical examination he was also declared medically unfit and on that score he was not allowed to join. Accordingly another person next available in the wait list namely respondent No. 3 was given the offer of appointment. The petitioner made a representation to respondent No. 2 which has been rejected vide order dated 28.2.2005 (Annexure P3) by observing as under :

(2.) The only argument raised by the learned counsel for the petitioner is that the petitioner got himself medically examined from ENT specialist of General Hospital, Panchkula and the doctors of PGI and they have found that the petitioner does not suffer from any hearing ailment. In that regard, our attention was invited to various averments made in paras 5, 10 and 11 of the writ petition. However, we are unable to accept the submission because once the petitioner has been subjected to medical examination by the Doctors of CMO (SG) ITBP, we do not entertain a doubt about the authenticity of the medical report. There is no mala fide on part of the respondents in denying appointment to the petitioner. In any case we cannot go into disputed questions of fact and record a finding which medical report has to be preferred over the other. The writ petition is wholly without merit. Accordingly, the same is dismissed.