Central Administrative Tribunal - Delhi
Ms. Renu Hooda vs Staff Selection Commission on 27 February, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.145/2014 with
O.A. No.146/2014
O.A. No. 195/2014
O.A. No. 296/2014
O.A. No. 302/2014
O.A. No. 379/2014
O.A. No.2049/2014
Order reserved on: 12.02.2015
Order pronounced on: 27.02.2015
Honble Mr. Ashok Kumar, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
OA No.145/2014
Ms. Renu Hooda,
D/o Shri Balbir Singh Hooda,
R/o H.No.340, D Block,
Lane No.8, Prem Nagar,
Nazafgarh, New Delhi.
...Applicant
Versus
1. Staff Selection Commission,
Through its Chairman,
Northern Region,
Block No.12, CGO Complex,
Lodhi Road,
New Delhi-3.
2. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
...Respondents.
OA No.146/2014
Ms. Sapna Suryan,
D/o Sh. Ratendra Kumar Suryan,
R/o H.No.RZ-185, Shiv Block,
Raghu Nagar,
Pankha Road,
New Delhi-45
...Applicant
Versus
1. Staff Selection Commission,
Through its Chairman,
Northern Region,
Block No.12, CGO Complex,
Lodhi Road,
New Delhi-3.
2. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
...Respondents.
OA No.195/2014
1. Ms. Sangeeta,
D/o Shri Bijender Singh,
R/o G-41, Sec.16 B,
Dwarka, Delhi-78.
2. Ashish Chauhan,
S/o Sh. Rajender Singh
R/o VPO-Balwari,
Distt + Teh. Rewari (Haryana)
3. Devendra Singh Mehra,
S/o Sh. Nandan Singh Mehra,
R/o 296-B Pocket-N Sarita Vihar,
Delhi.
4. Gaurav,
S/o Sh. Devender Kumar,
R/o RZ-153 B-Block Gopal Nagar,
Near Prem Nursery Najafgarh,
New Delhi-110043.
5. Sunil Kumar,
S/o Sh. Joginder,
R/o Vill-Dohki, P.O.-Kitlana,
The-Charkhi Dadri,
Dist-Bhiwani, State-Haryana.
6. Rajesh Kumar,
S/o Sh. Udai Singh,
R/o Vill Putta Sundra,
P.O. Partapur, Meerut
7. Ashu Saini,
S/o Sh. Ramesh Chander Saini,
R/o RZ K-32, New Roshan Pura,
Najafgarh, N. Delhi-110043.
8. Tulika,
D/o Sh. Jai Parkash,
R/o Flat No.2002, Type-IV Delhi
Admn. Flats, Gulabi Bagh,
Delhi-7
9. Tushar Yadav,
S/o Sh. Bhupendra Singh Yadav,
R/o C.53, Near Sida Factory,
Nandnagri, Modinagar (U.P)
10. Amit Kumar
S/o Shri Om Parkash
R/o H.No.619/30, Bhiwani Road By Pass,
Jind Near Ramswarup Chakki,
Jind (Haryana) Pin-126102
...Applicants
Versus
1. Staff Selection Commission,
Through its Chairman,
Northern Region,
Block No.12, CGO Complex,
Lodhi Road,
New Delhi-3.
2. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
...Respondents.
OA No.296/2014
Sh. Lokesh Ahlawat,
S/o Sh. Satbir Singh
R/o 52-B, Platinum Enclave,
Sector-18, Rohini, New Delhi-89.
...Applicant
Versus
1. Staff Selection Commission,
Through its Chairman,
Northern Region,
Block No.12, CGO Complex,
Lodhi Road,
New Delhi-3.
2. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
...Respondents.
OA No.302/2014
Shri Yogesh Kumar,
S/o Sh. Dharamvir Singh,
R/o V.P.O.- Aun, Tehsil-Charkhi Dadri
Bhiwani (Haryana)-127310
...Applicant
Versus
1. Staff Selection Commission,
Through its Chairman,
Northern Region,
Block No.12, CGO Complex,
Lodhi Road,
New Delhi-3.
2. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
...Respondents.
OA No.379/2014
Ms. Jyoti Singh,
D/o Sh. Chattur Singh
Presently residing at C-377,
First Floor Sector-22,
Noida-201301.
Previously at:
C-365, Ground Floor,
Sector-22, Noida-201301 ...Applicant
Versus
1. Staff Selection Commission,
Through its Chairman,
Northern Region,
Block No.12, CGO Complex,
Lodhi Road,
New Delhi-3.
2. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
...Respondents.
OA No.2049/2014
Pankaj
S/o Late Sh. Azad Singh,
R/o Block B1/18, M.S. Flats Peshwa Road,
Gole Market,
New Delhi-110001.
Aged 24 years,
[Recruitment for the post of
Sub-Inspector (Male)]
...Applicant
Versus
1. Staff Selection Commission,
Through its Chairman,
Northern Region,
Block No.12, CGO Complex,
Lodhi Road,
New Delhi-3.
2. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
...Respondents.
(By Advocate : Shri Ajesh Luthra, counsel for applicants in
All OAs
Shri S.M. Arif, counsel for SSC in all OAs
Ms. Rashmi Chopra, counsel for Delhi Police
in all OAs
Ms. P.K. Gupta, counsel for respondents in
OA No.296/2014)
O R D E R
Mr. Ashok Kumar, Member (A):
The applicants in OAs No. 145/2014, 146/2014, 195/2014, 296/2014, 302/2014, 379/2014 and 2049/2014 have challenged the decision of the Medical Board and the Review Medical Board by which applicants have been rejected and declared medically unfit on the ground of refractive surgery, which is stated to be illegal.
2. These OAs were heard together on the request of the counsel for both sides, inter-alia, arguing that the issues and relief sought in all these OAs are identical, as also the respondents in these OAs, i.e., namely, Staff Selection Commission (SSC) and Delhi Police.
3. Common arguments were made by Shri Ajesh Luthra appearing on behalf of all the applicants in these OAs. Mr. S.M. Arif, appeared as learned counsel for the Respondent-SSC and Mrs. Rashmi Chopra, appeared on behalf of Respondent-Delhi Police. With the consent of counsel for both sides, OA No.145/2014 was taken as a lead case for purposes of pleadings, documents and arguments. In view of above, these OAs are being disposed of by this common order.
4. Applicants applied for the post of Sub-Inspectors (SIs) in Delhi Police and after having succeeded in the Preliminary, Written Examination and in the Physical Test were declared unfit in the medical test due to defective vision. Subsequently, the applicants had got their vision corrected by way of LASIK surgery. The Review Medical Board yet declared them unfit because of the refractive surgery. The applicants have, therefore, challenged the action of the Respondent-SSC by which they have been declared medically unfit on the ground that the applicants have undergone vision correction surgery (refractive surgery), also known as LASIK surgery vide the impugned report dated 24.12.2013 at Annexure A-1 in the lead OA. It has been further stated that as per the decision of the Honble High Court of Delhi in CWP No.3196/2012, which was decided on 29.05.2012, it has been held that LASIK surgery cannot be a ground for medical disqualification of a candidate to a public post. The following reliefs have been sought in the lead OA (similar reliefs have been sought in the other OAs):-
a) Quash and set aside the impugned medical report of 24.12.2013 in respect of applicant (placed at Annexure A/1) and direct the respondent to treat the applicant as medically fit and
b) direct the Staff Selection Commission to further consider the applicant for appointment in the recruitment process against her roll number 2201084114 with all consequential benefits.
5. The contention of the applicants in the pleadings on record as well as during arguments, and in the written submissions filed by learned counsel Shri Ajesh Luthra who appeared for them, was that the applicants were declared unfit for reasons of defective vision/low vision. Such a defect in vision is curable by way of LASIK surgery. Respondents have declared them unfit and have been excluded from the selection process because of which they were not called to participate in the interview by the SSC. This is because according to the Scheme of the examination, only such candidates who were found fit upon medical examination are required to be interviewed. Marks obtained in the interview are added to the written examination to determine the result on the basis of which the merit list is drawn, taking into the final score of candidate along with preference indicated in the application form, based on which selected candidate is to be allotted a particular service.
6. The applicants had approached this Tribunal for interim directions and all applicants in these OAs (except applicant in OA No.2049/2014) were directed by the Tribunal to be interviewed in the ongoing interview provisionally and the results were to be kept in sealed cover to be opened only as per the directions of the Tribunal.
7. Applicants counsel in his arguments referred to the employment notification in which the medical standards for eye-sight are incorporated and according to him without wearing of glasses was specified as a non-permissible mode of correction. Yet, however, LASIK surgery was not specified as a hurdle in the medical fitness of a candidate. He also submitted that according to the counter reply of the Delhi Police, even AIIMS holds the same opinion as evident from Paragraph 4.11 of the counter reply in which the opinion of Dr. J.S. Titilyak, Eye Surgeon in Dr. Rajendra Prasad Centre for Ophthelmic Sciences, AIIMS on the aspect of duties required to be performed by employees of Delhi Police in extreme weather conditions during day and night. It has been conceded by the respondents that candidates were declared fit and appointed in Delhi Police on the basis of the above opinion of the AIIMS. The attempt of SSC was to isolate itself from the impugned medical reports, is also not acceptable because relying on this very opinion, SSC has excluded the applicants from the selection process. The initial unfitness declared by the Medical Board was also on behalf of SSC and the modality of appeal against the opinion of the Medical Board is also prescribed by SSC. Mr. Luthra argued that it was, therefore, incorrect for SSC to isolate itself from the erroneous medical report. The argument put forth was that candidates could not have been declared unfit merely because they had got their eye sight corrected through LASIK surgery because without wearing of glasses the applicants are able to meet the prescribed standards for eye sight as given in the employment notification. Learned counsel relied on the following judgments in support of his arguments:-
i) Ms. Sreeja K. vs. Union of India and Anr (WP ) No.3196/2012)
ii) Bhan Khatana vs. Union of India & Ors. (W.P. ) No.13461/2009);
iii) judgment of the Coordinate Bench of the Tribunal at Ernakulam in OA No.61/2011 decided on 20.07.2012 Deepesh K Kakkadankandy House Payam East PO Iritty (via) Cannanore District-670704 vs. Union of India represented by Secretary to Government of India, Ministry of Ralways, Rao; Bhawan, New Delhi-110001 and Ors.
iv) Judgment of the Tribunal in OA No.861/2013 vide order dated 30.09.2014 relying upon the judgment of the Honble Guwahati High Court at Guwahati in W.P. ) No.4981/2012 decided on 20.11.2012-Union of India & Others vs. Anjanjyoti Deka, wherein the view was taken that candidates who had undergone LASIK surgery are ipso facto not disqualified for being inducted as Astronauts in NASA as well as in the post of Lieutenant in the India Army.
v) Copy of the Corrigendum issued by UPSC for the CAPFs (Asstt. Commandants) Exam 2014, which permits LASIK surgery correction.
8. Mr. Luthra, therefore, argued that the decision based on the impugned medical unfitness on account of LASIK surgery be quashed, and treating the applicants as medically fit, their candidatures be further processed. In the case of applicant in OA No.2049/2014, who has not appeared in the interview under the interim orders of the Tribunal, he should first be interviewed by the SSC and thereafter necessary steps be taken according to his merit position.
9. Respondent-SSC has filed counter reply and the contentions and grounds raised in the counter reply as also by Mr. S.M. Arif, learned counsel for the respondents during arguments was that according to Para-3 of the instructions notified in the recruitment advertisement, candidates had been specifically advised to go through the detailed instructions before making the application. The further point submitted was that the Nodal Agency was conducting the Physical Examination Test and BSF was conducting the Medical Examination. BSF being the Nodal Agency for the purpose, the Commission had no role whatsoever in the conduct of the PET/Medical Examination and it is only for the Delhi Police and the BSF to contest the matter based on the merits of the decision taken by them.
10. Ms. Rashmi Chopra learned counsel appeared on behalf of Respondent-Delhi Police. The contention and arguments made by the respondents in the counter affidavit, as well as during arguments, were briefly to the effect that as per Rule-14 (a) of Delhi Police (Appointment & Recruitment) (Amendment) Rules,1980 and Standing Order No.369/2013 and terms and conditions of the Examination Notice for the post, the prescribed medical standards required minimum distant vision of 6/6 for both eyes without correction, i.e., without wearing of glasses. (Other standards stated are not relevant for the purpose of these OAs and are, therefore, not being mentioned).
11. Ms. Rashmi Chopra, learned counsel further stated that the issue involved is whether the applicants for the same examination could be declared fit for the post of Sub-Inspector (SI) in Delhi Police on the ground of having undergone vision correction surgery LASIK, although the requirement for employment to the post of SI is to possess a minimum distant vision as stated above. The duties of SI involves performance of duties in both day & night and in extreme weather conditions, as it is mandatory for the SI to be in fit medical health and alert. It is in this light of the matter that the medical standards as aforenoted had been prescribed. Keeping in view the requirement of minimum distant vision 6/6 and 6/9 without wearing of glasses, it would imply without any surgery as well. Accordingly, candidate who was undergone refractive surgery LASIK had been declared unfit for the post of SI. Learned counsel also referred to the opinion of Dr. J.S. Titiyal, Eye Surgeon, AIIMS, according to which candidates who undergone LASIK eye surgery are required to have compulsory eye check-up every year. They would not be able to face heavy glare of light especially during night hours and specific tests should be got conducted to check the fitness of their vision. It was lastly argued that the functional requirement is to be best decided by the department, who employs a person and hence the Tribunal may not grant the relief to the applicants, which is in any case not due to them. The following judgments were relied upon by the learned counsel:-
i) P.U. Joshi vs. Accountant General & Others, 2003 (2) SCC 632;
ii) M.R. Balaji vs. State of Tamil Nadu W.P. Nos. 28903 and 30813 of 2007 dated 06.02.2008
iii) Inder Setia vs. Union of India & Others WP (C ) No.9080/2011 decided on 07.02.2012
12. We have considered the pleadings, documents and the arguments of both the counsel.
13. We find that the employment notification of the post specifies the medical standard in Para-10(C) and the following is laid down with respect to eye-sight:
Eye sight:
The minimum distant vision should be 6/6 and 6/9 of two eyes without correction i.e. without wearing of glasses.
14. It is noticed that there is no exclusion provided in the standard for eye-sight with respect to LASIK surgery. The only stipulation is with respect to without correction, i.e., without wearing of glasses. In the citations filed by the learned counsel for the applicants one is in the matter of Ms. Sreeja K. (supra) wherein the Honble High Court in a similar matter in which the applicant, who had appeared for the post of Junior Geologist in the interview conducted by UPSC, had been declared medically unfit on account of her having undergone LASIK surgery in the right eye. The Honble High Court in that matter examined the Regulation relating to Physical Examination of candidates for employment in Govt. of India and having done so concluded in Paragraph-6 and Paragraph-7 of the judgment as follows:-
6. From the above, it is clear that the requirement for the candidates eye-sight needs to conform to the standard prescribed in the said Regulation. In the first instance when the test was conducted at Safdurjung Hospital, the petitioners eye- sight did not fit within the standard prescribed in the said Regulation. However, subsequently, she underwent LASIK Surgery and as a result of which, the eye-sight improved dramatically and fell within the standard prescribed in the said Regulation. This would be apparent from the fact that so far as distance vision is concerned, the visual acuity for the better eye as per the standard prescribed should be either 6/9 in both the eyes or 6/6 in the better eye and 6/12 in the worse eye. In view of the result of the second medical examination, we find that the petitioner has 6/6 vision in both the eyes, after LASIK Surgery. As such, she now conforms to the visual acuity prescribed in the said Regulation. In fact, even the total amount of Myopia, including cylinder, is much less than 4.00D. The extent has been stated in the test results which we have already indicated to be -0.25 sh. and -0.5 cy. Therefore, in so far as the standards prescribed by the Regulation are concerned, the petitioner has fulfilled those standards after the said LASIK Surgery.
7. We fail to see as to how the Medical Board could then have declared the petitioner unfit. In fact, there are no rules prescribing that the person who has undergone LASIK Surgery would be disqualified or declared unfit for the post of Junior Geologist, in the Geological Survey of India (Emphasis supplied).
15. This judgment of the Honble High Court is applicable in the present facts of these OAs. The applicant has achieved the standard prescribed for eye-sight after having undergone LASIK surgery and in the absence of any other stipulation that LASIK surgery was debarred for purposes of determining eye vision, the applicant would be deemed to have fulfilled the medical standard for eye sight.
16. We have also perused the Corrigendum issued by the UPSC in the case of Central Armed Police Forces (Assistant Commandants) Examination,2014 in which the earlier standard published in the Notification for the examination were substituted. Extracts of the same are reproduced as under:-
For Read
(Better eye corrected vision)
Worse eye
(corrected vision)
Better eye
(corrected vision)
Worse eye
(corrected
vision)
Type of
corrections
permitted
Spectacles
Type of
Corrections
Permitted
With Glasses/LASIK
Surgery
17. The contention of the respondents, therefore, that the requirement of eye-sight in the Delhi Police for the post in question in these OAs, i.e., SI keeping in view the functional requirements cannot be accepted because in the subsequent examination for a similar post, LASIK surgery has been permitted. The arguments that the requirement for the post without wearing of glasses cannot thus mean that the required eye-sight should be without LASIK surgery.
18. In the case of M.R. Balaji vs. State of Tamil Nadu (supra) cited by the respondents counsel was a matter in which the issue in question related to the non-selection of candidates to the post of Police Constable in terms of Rule 14 (b) of the Tamil Nadu Police Subordinate Service Rules. In these OAs as we have observed above, the Rules do not prescribe any restriction with respect to LASIK surgery. The present OAs, therefore, stand on a different footing.
19. In Inder Setia (supra), the issue in question was reliance on the certificate of a civilian doctors vis-`-vis a Review Medical Board for the post in the Air Force in the Flying Branch and there also the petitioners maximum limit of refractive error was different for the specified enlistment. The aforenoted judgment is also, therefore, distinguishable.
20. On the other hand, applicants have relied upon the judgment of the Honble High Court of Delhi in Bhan Khatana (supra) in which the issue related to the termination of the petitioner in that matter, based on medical examination in which after undergoing LASIK procedure, his contention that he was medically fit for retention in service was not accepted. In Paragraphs 20 to 22 of the said judgment relying on the judgment in the matter of Sreeja K. (supra), the High Court declared the opinion of the Review Medical Board contrary to the record and as erroneous. The relevant part of the said order reads as under:-
20. Learned counsel for the petitioner has placed reliance on the decision of this court dated 29th May, 2012 in W.P.(C)No.3196/2012 titled Ms. Sreeja K. v. Union of India & Anr. and contended that in a similar circumstances, where the petitioner"s services were terminated for the reason that she was found unfit on account of having undergone lasik surgery when there was no bar against correction of vision through such procedure in any rule, regulation, by-law or order. We may note that the above case related to service with the Geological Survey of India. In the instant case, we are concerned with the service of the petitioner with the para military force. However, the well settled principle that the respondents have to abide by the applicable rules and regulations and more so when the matter relates to termination from service cannot be deviated from. The principles laid down in the judicial precedent therefore, clearly applies.
21. We may note that even the Review Medical Board dated 10th November, 2008 had observed that the vision of the petitioner is 6/6 in both eyes and therefore, he had no difficulty with his visual capacity.
22. In view of the above, it has to be held that the opinion of the review medical board dated 10th November, 2008 is contrary to the record and is erroneous. The order dated 26 th July, 2007 is also not sustainable in law.
21. The next judgment relied upon by the applicants in OA No. 61/2011 is of the Coordinate Bench of the Tribunal at Ernakulam. The Tribunal concluded in Paragraph-3 of its judgment that Zyoptix Laser treatment was a disqualification for appointment in B-1 category and that in the absence of any specific inclusion of such treatment as a disqualification for appointment, it was held that the applicant, who had undergone the aforenoted Laser treatment, cannot be disqualified for employment.
22. In a recent judgment dated 30.09.2014 in OA No.861/2013 Ms. Nupur Bawa vs. Union of India, which related to the medical unfitness of the applicant on account of LASIK surgery for the post of Junior Geologist, this Tribunal relying upon the judgment in Ms. Sreeja K. (supra) and the judgment of the Honble Guwahati High Court in WP (C) No.4981/2012 decided on 20.11.2012, in which it was viewed that candidate who had undergone LASIK are ipso facto not disqualified for being inducted as Astronauts in NASA as well as in the post of Lieutenant in the Indian Army held as follows:-
9. As has been noticed hereinabove, the issue involved in the present Original Application is, in all fours, of the judgment of Honble High Court of Delhi in the case of Ms. Sreeja K. (supra), thus being bound by the said judgment, we dispose of the present Original Application with direction to the respondents to process the candidature of the applicant for the post in question disregarding the medical opinion about her eyesight, within eight weeks from the date of receipt of a copy of this Order. No costs.
23. Having regard to the facts of the matter as aforestated, various judgments, specially that of the Honble Delhi High Court in the matter of Ms. Sreeja. K (supra), the Ernakulam Bench of the Tribunal, the Honble Guwahati High Court and this Tribunal in OA No.861/2013, we are of the view that in the absence of any specific exclusion under the medical standard for eye-sight of candidates, who had undergone LASIK surgery, the present applicants cannot be deprived of employment on the basis of the opinion of the Review Medical Board. We, therefore, find that the decision of the Review Medical Board and the impugned action of the respondents cannot be legally sustained and are, therefore, quashed and set aside.
24. OA Nos. 145/2014, 146/2014, 195/2014, 296/2014, 302/2014 & 379/2014 are allowed to the extent indicated above with direction to the respondents to process the candidature of the applicants for the post disregarding the medical opinion about the eye-sight. In the case of OA No.2049/2014, respondents shall hold the interview and thereafter process the candidature of the applicant on the basis of pure merit to determine her selection and if found fit to process her candidature for the post in question disregarding the medical opinion about the applicants eye-sight.
25. The aforenoted exercise shall be completed by the respondents within a period of 8 weeks in case of all applicants, except in the case of applicant in OA No. 2049/2014 in which case the respondents shall process the matter within a period of 10 weeks from the date of receipt of a copy of this order.
26. Let a copy of this order be placed in each of the case files.
(Raj Vir Sharma) (Ashok Kumar) Member (J) Member (A) cc.