1. ' MUHAMMAD SAYEED AKHTAR, J.---The petitioner appeared in the CSS Examination, 2004 under Roll No,3767 and qualified the same. The Public Service Commission required him to appear before the Central Medical Board for Medical Examination at Medical Centre for Federal Government Servants, Lahore. He appeared before the Central Medical Board on 26-5-2005 along with his medical reports. On appearance, the Federal Public Service Commission communicated the report of the Medical Board to him on 13-6-2005, declaring him overweight by 25 Kgs. He was further advised as follows:-- "In case of overweight/underweight he is advised to reduce/gain his weight as the case may be. He will be required to appear before the Central Medical Board along with expert's opinion report on the date intimated to him later on."
2. ' The Federal Public Service Commission announced the result of the Competitive Examination 2004 on 1-7-2005 and placed him at S.No,92 of the Merit List. The petitioner was again asked to appear before the Central Medical Board Karachi, which he did on 20-8-2005. The Federal Public Service Commission vide Memorandum dated 20th August, 2005, communicated to the petitioner that "he has been declared unfit due to gaining weight instead of reducing and severe obesity".
3. ' The petitioner preferred appeal before the Appellate Medical Board. His appeal was forwarded by the Public Service Commission to the Ministry of Health for constitution of Appellate Medical Board.
4. The petitioner was directed to join civil service Academy by the Director, Programme, Civil Service Academy Walton Lahore, on 10-10-2005. He was examined by the Appellate Medical Board on 4-10- 2005, the report reads as under:-- "The candidate was examined by the Appellate Medical Board. His height is five feet eight inches and his weight is 122 Kgs. Without clothes with just one underwear. His waist circumference is 132 c.m. And he has not shown any tendency of reducing weight. His BMI is 64.2 Kgs./m. He is suffering from Malignant Obesity. He is at risk of developing all complications attributable to obesity. He is declared "UNFIT"."
5. ' The medical reports have been assailed in this petition. Petitioner was asked to join the Civil Service Academy on 10-10-2005 for training. He attended the 33rd Common Training Programme successfully.
2. Learned counsel for the petitioner contends that according to rule 9 of the Competitive Examination Rules, a candidate must be in-good mental and bodily health and free from any physical defect likely to interfere with the discharge of his duties. It was urged that the report of the Medical Board or that of the Appellate Medical Board does not reveal that the petitioner has a physical defect likely to interfere with the discharge of his duties. Mere overweight is not a defect which is likely to interfere in the efficient performance .Of his duties. He urges that even otherwise the obesity and overweight are curable/reversible. It was maintained that at any rate vide Notification dated 12th April, 2007, the petitioner's probationary period has been terminated with effect from the said date, and he has been confirmed. He cannot be sent home at this stage. The respondents are estopped from challenging the fitness of the petitioner. Reliance was placed on 2003 PLC (C.S.) 1161.
3. Conversely learned Deputy Attorney-General and counsel for the Central Board of Revenue submit that the petitioner has been, declared unfit by the two Medical Boards, their opinion cannot be substituted by this Court.. The conduct of the petitioner is contumacious and that of defiance.
6. He instead of reducing the weight added 5 Kgs. To it. Further submitted that it is the discretion of the Federal Government to reject any unfit candidate who is declared so by the Medical Board. It is also maintained that no ulterior motive has been alleged against either of the Medical Board.
4. I have perused the record and considered the arguments of the learned counsel for the parties.
7. Para.9 of the Rules regulating the conduct of the Competitive Examination, 2004, reads as under:- "A candidate must be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of his/her duties. A candidate who (after such medical examination as government or the appointing authority, as the case may be, may prescribe) is found not to satisfy these requirements, will not be appointed."
8. ' Para. 24 of the same rules is also reproduced:-- "When any defect is found it must be .Noted in the certificate and the medical examiner should state his opinion whether or not it is likely to interfere with the efficient performance of the duties which will be required of the candidate if the condition is remediable by operation it should be so stated."
9. ' The afore-referred rule came up for consideration in a similar case Farrukh Bashir v. Federal Public Service Commission, Islamabad through Secretary and 2 others (supra) in which my learned brother Syed Jamshed Ali, J., (as he then was) observed as under:- "To my mind to be medically fit or unfit is one thing and to be unfit for efficient discharge of duties is quite another. A common feature of the cases of Dr. Kashif Bashir and Farrukh Bashir is that the Central Medical Board or the Appellate Board did not record their opinion that the defects noted by them were likely to interfere in efficient discharge-of duties as required by Regulation No,24. The aforesaid regulation, on a bare reading shows that it is mandatory. There is an apparent wisdom in it. A candidate who has successfully competed for the CSS. Examination should not be eliminated unless the defect is of such a nature which is likely to interfere with the efficient performance of the duties by an officer."
10. ' It was further observed that:-- "The question was whether excess weight alone could be a disqualifying factor. According to the opinion of Civil Surgeon expressed before this Court weight alone did not stand in the way of efficient performance of the -duties. It may also be noted that the regulations only provide for the minimum weight as 43.5 Kgs. And not the maximum weight which was otherwise capable of reduction. However, for the order proposed to be made. I am not expressing any final opinion on this question. "
11. ' In para. 17 of the said judgment, it was stated as under:-- "Therefore, while declaring the three petitioners as unfit, the Central Medical Board did not comply with Regulation No,24 which, as observed above, is mandatory and could not be left to the guess work as suggested by the learned Deputy Attorney General so as to deprive a successful competitioner of an opportunity of advancement in life. Non-compliance of the aforesaid regulation at least creates a doubt whether the Central Medical Board or the Appellate Board were only recording their opinion as to medical fitness or it necessarily included fitness for service in the federal Government and benefit of doubt has to go to the candidates rather than to the Central Medical Board or the Appellate Board."
12. ' The question raised by the learned counsel for the respondents stands' already answered before the said Bench. Nothing has been brought on the record to show that the overweight is a "physical defect likely to interfere with the discharge of his/her duties" or "whether or not it is likely to interfere with the efficient performance of the duties." The opinions of the two Boards also do not reveal anything to this effect nor there is any finding that the condition is remediable or not. I am not persuaded to take a different view. This petition, therefore, is allowed. The petitioner shall appear before the Appellate Medical Board to be constituted by the Federal Ministry of Health after three months of the passing of this order, the date for appearance before the Appellate Medical Board shall be duly intimated to him. The Board shall record his opinion in terms of para.24 of the Regulation.