Kerala High Court
Amalraj Bu.U vs Union Of India on 29 October, 2021
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WA NO. 924 OF 2021
AGAINST THE JUDGMENT IN WP(C).NO.23817/2020 OF THE HIGH COURT OF
KERALA, ERNAKULAM
APPELLANT/PETITIONER/RESPONDENT:
1 KAILASNATH V.A.,
AGED 27 YEARS, S/O.AYYAPPAN V.U, VADASSERIYIL HOUSE,
NELLAD P.O, ERNAKULAM 686 69.
2 ANANDU A,
AGED 24 YEARS, S/O.ANANDANATH P, SREEJAS, MAYITHARA P.O,
CHERTHALA, ALAPPUZHA-688 539
3 SACHU PRASAD,
AGED 22 YEARS, S/O. PRASAD, KANNANTECHIRA, ANANDESWARAM,
THOTTAPPALLY, P.O. ALAPPUZHA.
4 G.GOUTHAM ,
AGED 23, S/O.GOPIDAS, PADJARITHAIPARAMBU, AMAYIDA,
AMBALAPUZHA, ALAPPUZHA.
5 ANAS R,
AGED 21 YEARS, S/O. RAJU A, KILIKKAKULANGARA,
THULAMPARAMBU, NORTH MANNARASALA P.O, HARIPAD.
6 SABU B,
AGED 27 YEARS, S/O. BALACHANDRAN K, APARANALAYAM,
KOCHUNADAKIZHAKKATHIL, KUREEPUZHA, KAVANAD P.O,
KOLLAM-691 003
7 BINOY V.L,
AGED 24 YEARS, S/O. VAIKUNDAN S, ELANJIPPARA PUTHENVEEDU,
PALLICKAL , PIN-695 604.
W.A Nos.924, 938 & 1020 of 2021
2
8 SREELATHA L,
AGED 27 YEARS, D/O. PUSHPAKARAN PILLAI R,
PUSHPAVILASAM, PUNTHALATHAZHAM, KILIKOLLOOR, KOLLAM,
PIN-691 004
BY ADVS. M/S. C.UNNIKRISHNAN (KOLLAM) & JOHNSON
GOMEZ
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, NORTH
BLOCK, NEW DELHI 110 001.
2 CENTRAL RESERVE POLICE FORCE,
REPRESENTED BY ITS DIRECTOR GENERAL, BLOCK NO.1,
LODHI ROAD, NEW DELHI 11003.
3 THE DEPUTY INSPECTOR GENERAL,
CENTRAL RESERVE POLICE, GROUP CENTRE, PALLIPURAM,
THIRUVANANTHAPURAM, KERALA-695 316
4 THE REVIEW MEDICAL BOARD,
CENTRAL RESERVE POLICE FORCE CENTRE, PALLIPURAM,
THIRUVANANTHAPURAM, KERALA-695 316
5 STAFF SELECTION COMMISION
REPRESENTED BY ITS SECRETARY BLOCK NO. 12, CGO
COMPLEX LODHI ROAD, NEW DELHI-110 03
SRI.P.VIJAYAKUMAR, ASGI,
SMT.S.KRISHNA,CGC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.10.2021, ALONG WITH WA.NOS.938/2021 & 1020/2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A Nos.924, 938 & 1020 of 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WA NO. 938 OF 2021
AGAINST THE JUDGMENT IN WP(C).NO.26149/2020 OF THE HIGH COURT
OF KERALA, ERNAKULAM
APPELLANTS/PETITIONERS 1, 2 & 5
1 KANNAN V.,
AGED 26 YEARS, AGED 26 YEARS,S/O.VIJAYAN,
MANNARAKONATHU VEEDU,VATTIYOORKAVU
P.O.,THIRUVANANTHAPURAM-695 013.
2 PAUL LEVY,
AGED 20 YEARS,S/O.LEVY,VATTAKKALLEL (H),
METHOTTY,KOOVAKKANDOM P.O.,THODUPUZHA,
IDUKKI-685 588.
3 ADARSH R.KRISHNAN,
AGED 24 YEARS,S/O.RADHAKRISHNAN V.M.,
V.R.K. VILLA,ERAMATHOOR P.O.,MANNR,
ALAPPUZHA-689 622.
BY ADVS. M/S.C.UNNIKRISHNAN (KOLLAM) & JOHNSON GOMEZ
RESPONDENTS/PETITOINERS 3, 4, 6 & 7:
1 THE UNION OF INDIA,
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS,NORTH
BLOCK, NEW DELHI-110 001.
2 CENTRAL RESERVE POLICE FORCE,
REPRESENTED BY THE DIRECTOR-GENERAL,
BLOCK NO.1,LODHI ROAD,NEW DELHI-110 003.
W.A Nos.924, 938 & 1020 of 2021
4
3 THE DEPUTY INSPECTOR (GENERAL,
CENTRAL RESERVE POLICE FORCE GROUP CENTRE,
PALLIPURAM,THIRUVANANTHAPURAM,KERALA-695 316.
4 THE REVIEW MEDICAL BOARD,
CENTRAL RESERVE POLICE FORCE GROUP CENTRE,
PALLIPURAM,THIRUVANANTHAPURAM,KERALA-695 316.
5 STAFF SELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY,BLOCK NO-12,
CGO COMPLEX,LODHI ROAD,NEW DELHI-110 003.
6 SARANDEV A.V.,
AGED 25 YEARS,S/O.VASUDEVAN A.V.,ANGALATH HOUSE,
KALLERI,KANNAMBARA P.O.,PALAKKAD-678 686.
7 AYANA M.,
AGED 24 YEARS,D/O.MANIKANDAN,CHEUKKKUNNAM,
ELAVAMPADAM P.O.,PALAKKAD-678 684.
8 GEETHU P.K.,
AGED 23 YEARS,D/O.KUMARI GIRIJA K.,WARASWATHI
MANDIRAM, T.C.50/2188,NEMOM P.O.,THIRUVANANTHAPURAM-
695 020.
9 SHALI S.,
AGED 22 YEARS,D/O. SHAJI MOHAN R.,
KOLATHONI,CHALLIPARAMBU, PARUVASSERRY
P.O.,KANNAMBRA, PALAKKAD-678 686.
BY SMT.MAHESWARY G., CGC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.10.2021, ALONG WITH WA.NOS.924/2021 & 1020/2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A Nos.924, 938 & 1020 of 2021
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WA NO. 1020 OF 2021
AGAINST THE JUDGMENT IN WP(C).NO.26254/2020 OF THE HIGH COURT
OF KERALA, ERNAKULAM
APPELLANT/PETITIONER:
AMALRAJ B.U.
AGED 23 YEARS, S/O.BABURAJ, RESIDING AT 302,
THADATHARIKATHU VEEDU, KUNJILAKKAD, MITHRUMALA P.O.,
KALLARA, THIRUVANANTHAPURAM, KERALA-695 610.
BY ADVS. M/S. NAVOD PRASANNAN PATTALI &
K.V.KRISHNAKUMAR
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF PERSONNEL,
PUBLIC GRIEVANCE AND PENSION, DEPARTMENT OF PERSONAL
AND TRAINING, NORTH BLOCK, NEW DELHI - 110 001.
2 MINISTRY OF HOME AFFAIRS, REPRESENTED BY ITS
SECRETARY, NORTH BLOCK, NEW DELHI - 110 001.
3 STAFF SELECTION COMMISSION
REPRESENTED BY ITS REGIONAL DIRECTOR (KKR), 1ST
FLOOR, E WING, KENDRIYA SADAN, KORAMANGALA,
BENGALURU, KARNATAKA - 560 034.
4 CENTRAL ARMED POLICE FOCES
REPRESENTED BY JOINT SECRETARY (COORDINATION AND
INTERNATIONAL COOPERATION), MINISTRY OF HOME
AFFAIRS, NORTH BLOCK, NEW DELHI - 110 001.
W.A Nos.924, 938 & 1020 of 2021
6
5 DIRECTORATE GENERAL
CENTRAL RESERVE POLICE FORCE (RECRUITMENT BRANCH),
EAST BLOCK-07, LEVEL-04, SECTOR -01, R.K.PURAM,
NEW DELHI -110 066.
6 INSPECTOR GENERAL
FRONTIER HEAD QUARTERS, BORDER SECURITY FORCE,
YELAHANKA P.O., BANGALORE, KARNATAKA - 560 064.
7 DEPUTY INSPECTOR GENERAL OF POLICE
GROUP CENTRE, CENTRAL RESERVE POLICE FORCE,
PALLIPURAM, THIRUVANANTHAPURAM - 695 316.
8 DETAILED MEDICAL BOARD
REPRESENTED BY ITS PRESIDING OFFICER, CONSTABLES
(GD) EXAMINATION, 2018, GROUP CENTRE, HQR 162 BN.,
BORDER SECURITY FORCE, KAINUR CAMP, MULAYAM P.O.,
THRISSUR, KERALA - 680 751.
9 COMPOSITE HOSPITAL CRPF
GROUP CENTRE CAMPUS, DODDABALLAPUR RD., YELAHANKA,
BENGALURU, KARNATAKA - 560064.
10 REVIEW MEDICAL BOARD
REPRESENTED BY ITS PRESIDING OFFICER, CONSTABLES
(GD) EXAMINATION, 2018, GROUP CENT5RE, CENTRAL
RESERVE POLICE FORCE, PALLIPURAM, THIRUVANANTHAPURAM
- 695 316.
11 CHIEF MEDICAL OFFICER
REVIEW MEDICAL BOARD, CONSTABLES (GD) EXAMINATION,
2018, GROUP CENTRE, CENTRAL RESERVE POLICE FORCE,
PALLIPURAM, THIRUVANANTHAPURAM - 695 316.
BY SRI.K.THYAGARAJESWARAN, CGC
SRI.N.S. DAYA SINDHU SHREE HARI, CGC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.10.2021, ALONG WITH WA.NOS.924/2021 & 938/2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.A Nos.924, 938 & 1020 of 2021
7
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
=========================================
W.A No.924 of 2021
[arising out of the judgment dated 07.04.2021 in W.P(C) No.23817/2020],
W.A No.938 of 2021
[arising out of the judgment dated 07.04.2021 in W.P(C) No.26149/2020]
&
W.A No.1020 of 2021
[arising out of the judgment dated 07.04.2021 in W.P(C) No.26254/2020]
=========================================
Dated this the 29th day of October, 2021
JUDGMENT
Alexander Thomas, J.
These cases are connected, as they relate to issues of rejection of the appellants on medical grounds in respect of selection and appointment to the post of General Duty Constable (GD Constable) in the Central Armed Police Forces (CAPF) services like Central Reserve Police Force (CRPF), Border Security Force (BSF), Central Industries Security Force (CISF), National Investigation Agency (NIA), etc. Hence, these cases are disposed of on the basis of this common judgment. Further, the case of the appellants is that they have successfully cleared almost all the stages of the abovesaid post and that, they have cleared the computer based examination, physical efficiency test and Physical Standard Test (PST) and that, they are now disqualified solely on the ground that they W.A Nos.924, 938 & 1020 of 2021 8 have not fulfilled certain medical parameters in the process of Detailed Medical Examination (DME) and the Review Medical Examination (RME). As per the prescribed procedure, such a candiadate disqualified by the DME Board, is entitled to file an appeal/review petition before the Review Medical Examination (RME) Board and for that purpose, they have to submit the requisite memorandum of appeal/review petition, with the prescribed Form 3 proforma, which is insisted that the candidate preferring such appeal should necessarily get medical certification incorporated in the Form 3 application from the qualified medical expert/specialist, as the case may be, to the effect that, he/she has evaluated and examined the candidate and the candidate does not suffer from the medical defect noted, etc. It is only after obtaining such a certification that, the candidate was preferred the appeal/review petition, will be admitted to the RME Board, going by the terms and conditions of the guidelines. But through the abovesaid rejection, they would have been selected and appointed to the abovesaid services in question. It is to be noted that the official respondents themselves have issued guidelines for medical test for the abovesaid selection process, more particularly, for the RME Board evaluation process. In view of such similarity of issues, these cases are disposed of on the basis of this common judgment. W.A Nos.924, 938 & 1020 of 2021 9 Heard Sri.C.Unnikrishnan, learned Advocate appearing for the appellants in W.A Nos.924 & 938 of 2021, Sri.Navod Prasannan, learned Advocate appearing for the appellant in W.A No.1020/2021, Sri.P.Vijayakumar, learned Assistant Solicitor General of India appearing in the above writ appeals, Sri.S.Krishna, learned Central Government Counsel appearing for the official respondents in W.A.No.924/2021, Smt.G.Maheswary, learned Central Government Counsel appearing for the official respondents in W.A No.938/2021 and Sri.K.Thyagarajeswaran, learned Central Government Counsel appearing for the official respondents in W.A No. 1020/2021.
W.A No.924 of 2021
There are eight appellants in this appeal. The case of the 1 st appellant was rejected by the Detailed Medical Examination (DME) Board on the ground that, he does not satisfy the requisite knock knee parameters, viz. that is on the ground that the Intermalleolar Distance (IMD) between the legs is exceeding the permissible limit of 5cm. As per the prescribed procedure, such a candidate disqualified by the DME Board, is entitled to file an appeal/review petition before the Review Medical Examination (RME) Board and for that purpose, they have to submit the requisite memorandum of appeal/review petition, with the W.A Nos.924, 938 & 1020 of 2021 10 prescribed Form 3 proforma, which is insisted that the candidate preferring such appeal should necessarily get medical certification incorporated in the Form 3 application from the qualified medical expert/specialist, as the case may be, to the effect that, he/she has evaluated and examined the candidate and the candidate does not suffer from the medical defect noted, etc. It is only after obtaining such a certification that, the candidate was preferred the appeal/review petition, will be admitted to the RME Board, going by the terms and conditions of the guidelines, as mentioned herein above. It is the specific case of the 1 st appellant that, he had cleared the medical screening tests in the selection process of Indian Army, as evident from Ext.P-5(c) produced in this case. But that, he could not clear in the written examination of that process. It is common ground that in the instant case, the 1 st appellant has produced the requisite medical certification along with the Form 3 appeal [see page No.107 of the paper book of this appeal], as per Ext.P-5(a) produced in the W.P(C) relatable to this appeal, which discloses that he has been examined by a medical expert in the speciality of Orthopaedics, who has certified that on measurement, the candidate's Intermalleolar Distance is less than 3cms. The 1st appellant was thereafter, evaluated by the RME Board, who has issued the rejection order as per Ext.P-5(b) produced in W.A Nos.924, 938 & 1020 of 2021 11 this case, stating that he is unfit due to failure to meet the knock knee parameters and that the IMD is 7cms. In that regard, it is to be noted that the official respondents themselves have issued guidelines for medical test for the abovesaid selection process, more particularly, for the RME Board evaluation process. The applicable guidelines and norms regulating Review Medical Boards are contained in page 44 of the abovesaid guidelines and clause (2) thereof, reads as follows :
"2. For the defect for which candidate has been declared unfit should be examined thoroughly and the findings must be got supported by proper investigation reports if applicable.
Review Medical Board may get opinion of concerned specialists or super specialists of Govt. Medical College and Hospital in case of any controversy. It must be kept in mind that a specialist medical officer of concerned field has certified that the candidate is not suffering from the disease for which he has been rejected, making the decision of the earlier Medical Board controversial. Therefore, in cases of rejection in review medical examination, clinical findings should be corroborated with confirmatory tests/ investigations/opinion of specialists/super specialists of Govt. Hospitals/Medical Colleges/Govt. approved private medical centers, whichever and wherever applicable."
2. One of the essential conditions laid down therein, is that the Review Medical Board may get opinion of the specialists concerned or super specialists concerned of Government Medical Colleges & Hospitals, in case of any controversy and that in a case, where a specialist medical officer of the field concerned has certified that the candidate is not suffering from the disease, for which he has been rejected, would result in W.A Nos.924, 938 & 1020 of 2021 12 the earlier medical board decision contravention. Hence, in cases of rejection in Review Medical Examination, clinical spine should be corroborated with confirmatory test/investigation/opinion of specialists/super specialists of Government Colleges/Hospitals/ Government approved medical private centres, etc. In the instant case, we specifically queried the learned Central Government Counsel, as to whether the Review Medical Board consisted of a medical expert in the specialty of Orthopaedics, inasmuch as, the Form 3 certification at Ext.P-5(a), has been rendered by an Orthopaedic surgeon of the State medical/health service. The official respondents have now fairly and candidly stated before us that, the said RME Board did not contain Orthopaedic specialists. The impact of the abovesaid guidelines is that the same is binding and the official respondents has to meticulously comply with the terms and conditions of the guidelines to ensure the rendering a fair and reasonable decision making process and otherwise to violate the prescribed procedure, as per the guidelines, would amount to procedural impropriety. In the instant case, since the medical certification in terms of Form 3(c) was secured by the 1st appellant from a Specialist Orthopaedic Surgeon, then the abovesaid guidelines demanded that the RME Board should have W.A Nos.924, 938 & 1020 of 2021 13 comprised of an Orthopaedic Surgeon which was consequence of the absence in the instant case. This is so, because the RME Board wanted to controvert the decision of the State Medical Expert, then he was bound to get corroboration from specialist or super specialist, as the case may be of Government Hospitals, Medical College Hospitals, etc. Therefore, without getting into the merits of the controversy in any manner, we are of the firm view that the rejection of the 1 st appellant, would require judicial interdiction with a remit.
3. The case of the 2nd appellant was rejected by the DME Board on the ground of Hyperhidrosis. He had secured Ext.P-6 Form 3 certification from a qualified specialist in the field of general medicine of the State Government Medical College, Alappuzha, as evident from Ext.P-6 [see page 110 of the paper book of this appeal]. The RME Board has rejected the case of the 2nd appellant on the very same ground earlier cited by the DME Board and the assessment was not done by a qualified specialist in the field concerned, which is general medicine in this case. Moreover, if at all, the RME Board wanted to controvert the abovesaid expert medical opinion given by the State Medical College expert, as per Form-3 certification, then the guidelines in question demanded that the same should have been done only on the basis of corroboration by W.A Nos.924, 938 & 1020 of 2021 14 seeking opinion of specialists or super specialists, as the case may be, as mentioned supra. So in this case also the decision making process is vitiated on the ground of procedural impropriety, illegality and at any rate, the action cannot be said to be reasonable and proper exercise of power. So, the case of the 2nd appellant also would require interference.
4. As far as the 3rd appellant is concerned, he was declared unfit by the DME Board on the ground of Surgical case of varicos vein. He had secured Ext.P-7 Form 3C certification from a qualified surgeon having MS General Surgery degree, who is the specialist in the field concerned, who has certified as per Ext.P-7 [see page 112 of the paper book of this appeal], that the varicose vein has been surgically corrected earlier and that there is no varicose vein as at present in the case of the 3rd appellant. However, the RME Board which did not comprise an expert in the specialty of general surgery has rejected the case of the 3rd appellant, citing the very same ground invoked by the DME Board. Hence, the abovesaid decision making process in the case of the 3rd appellant has also violated the guidelines in the decision making process being vitiated as above.
5. The cases of the 4th & 5th appellants are also in a manner identical or similar to the case of the 3 rd appellant. Exts.P-8 & P-9(a) W.A Nos.924, 938 & 1020 of 2021 15 produced in this paper book of this appeal are the Form 3C certification given by the specialist surgeon, whereas the RME Board rejected the case, without the aid of a specialist surgeon and without corroboration by reference to a specialist, etc., as mentioned supra. So, the cases of 4 th & 5th appellants would also require interdiction as in the case of the 3 rd appellant.
6. The 6th appellant's case was rejected by the RME Board on the ground of "Hypertension tachycardia" "Anal Fissure" & "knock knee"
issue. He had secured Form 3C medical certification by the doctors in the specialty of general surgeon in the case of the first two defects and specialist surgeon as far as the third defect of knock knee is concerned, therein specialist physician who is qualified in general medicine has certified that his blood pressure and arthritis are normal and the special surgeon has certified that his knock knee measurement is less than 3cm, which is within the permissible limit. The 6 th appellant has a specific case that, going by the acceptable medical and scientific procedure, the IMD is measured on the basis of wooden blocks, etc. and the same devise was not used. We need not get into those issues sitting in judicial review, for the simple reason that the RME Board has rejected the medical certification of the State Medical Specialist Experts and the said RME W.A Nos.924, 938 & 1020 of 2021 16 Board did not contain any of the requisite specialist concerned required in this case and that aspect of the matter is candidly admitted by the official respondents. To put it precisely, the RME Board did not seek the help of a qualified physician in the field of general medicine and a qualified Orthopaedic surgeon, etc. That apart, there is also violation of the abovesaid guidelines quoted hereinabove, wherein it is necessary that if the RME Board wants to controvert the opinion of the medical specialists concerned, then they will have to refer the case to specialist/super specialist, as the case may be, as quoted in the applicable guidelines mentioned hereinabove. So, in the instant case also, the decision making process is vitiated as above, which requires interference in exercise of the powers of judicial review.
7. As far as the 7th appellant is concerned, he was declared unfit by the DME Board on the ground of Hypertension tachycardia. Here also, he had secured opinion of specialist expert. As a matter of fact, Ext.P-11 produced on page 127 of this appellate paper book would show that the said certification in Form-3 has been rendered by a qualified doctor in the super specialty field of cardiology. The said super specialist opinion has been overruled by the RME Board in this case and the RME Board did not seek the help of any specialist and that aspect of the matter W.A Nos.924, 938 & 1020 of 2021 17 is candidly admitted before us by the official respondents. Therefore, this case is also similarly situated warranting necessary directions as in the other cases.
8. The 8th appellant was declared unfit by the DME Board on the ground of "Thyromegaly" and he had secured Ext.P-12(a) certification in the prescribed Form-3 appeal, which has been certified by a super specialist doctor in the field of Endocrinology, stating that the applicant on examination and evaluation is not suffering the said medical defect and that the opinion of the DME Board is on account of error of judgment. In this case also, the opinion of a super specialist as per Ext.P- 12(a) has been mechanically overruled by the RME Board, without seeking the help of any specialists/super specialist and in violation of the guidelines as quoted hereinabove. So, this case would also require the same treatment. Hence, the upshot of the above discussion that in the case of the rejection of each of these eight appellants mentioned hereinabove, the official respondents have violated the terms and conditions of the applicable guidelines, more particularly, the one given in pages 44 & 45 of the guidelines, which stipulates the procedure and process of the RME Board. Hence, suffice to say, the appellants in this case have succeeded in making out valid grounds of judicial review, so as W.A Nos.924, 938 & 1020 of 2021 18 to invoke the prerogative discretionary public law remedy conferred under Article 226 of the Constitution of India. The matter would require serious re-consideration by the RME Board process and would warrant a remit. Hence, the impugned decision of the RME Board, rejecting the cases of these appellants, will stand set aside and quashed. The cases of these appellants will stand remitted to the RME Board, for consideration and decision afresh. The RME Board will meticulously and carefully comply with the terms and conditions of the guidelines issued by the official respondents, as mentioned hereinabove and more particularly, the norms contained in pages 44 & 45 of the guidelines, which regulates the process and procedure for RME Board. We make it clear that we have not entered into the merits of the controversy and we have only examined as to whether the decision making process, which led to the impugned rejection orders, are vitiated on account of grounds of judicial review like procedural impropriety, unreasonableness, illegality, etc. These crucial aspects of the matter has not been reckoned in the rendering of the impugned judgments in these W.P(C)s. Accordingly, the impugned judgment dated 07.04.2021 in W.P(C) No.23817/2020, will stand set aside. The RME Board and the official respondents will ensure that the abovesaid process will be duly completed by the RME Board, in W.A Nos.924, 938 & 1020 of 2021 19 strict compliance of the guidelines, so as not to give rise to any scope of mutual complaints and without much delay, at any rate, within a period of six weeks from the date of production of a certified copy of this judgment.
With these observations and directions, the above W.A will stand disposed of.
W.A.No.938 of 2021
9. There are 3 appellants in this case. The 1 st appellant was declared unfit by the DME Board on the ground testis absent, varicose vein, etc. In the Form 3C medical certification, the appellant has made available a certificate issued by a qualified expert in the field of General Surgery, having MS(General Surgery) degree and serving the State Medical Board Health Service, wherein it is stated that 'hypoplastic testes' has been operated and that varicose vein has been operated earlier, and that the assessment by the DME Board is on account of error of judgment and the candidate is medically fit, etc. Further, the 1st appellant would place reliance on Exts.P-6 & P-6(b) certificates of the same specialist obtained later, wherein also the details are given that there are no serious medical defects, etc. It is the specific case of the 1 st appellant herein that he had earlier passed the medical screening test in W.A Nos.924, 938 & 1020 of 2021 20 the Indian Army selection process, and though later he could not clear the written examination, and that Ext.P-6 (c) produced in this case is the certification then given by the Army medical authorities. It is pointed out that norms and guidelines in Indian Army selection is much more rigorous than the case of CAPF selection process, etc . Be that as it may, the heart of the matter is that the RME Board has rejected the case of the 1st appellant without seeking the aid of any specialist, and they have taken the step of overruling the considered professional opinion of qualified specialist in the field of General Surgery. As mentioned in the previous appeal, it at all the RME Board was with the firm view that abovesaid medical certification of the State Medical Expert is to be is required to be controverted, then the abovesaid procedure of seeking reference to expert/super specialist of Government institutions/Medical Colleges, etc should have been resorted to, and in other words, the abovesaid cardinal norm in the guidelines meant to regular RME Board process has been violated.
10. The case of the 2nd appellant was rejected by the RME Board on the post operative case of varicose. He had also obtained medical certification along with Form 3 appeal in the prescribed proforma from a qualified expert specialist in the field of general Surgery, which is the W.A Nos.924, 938 & 1020 of 2021 21 applicable specialty in this case, certifying that the varicose vein problem was earlier surgically corrected and he is not having now the varicose vein problem. The abovsaid considered professional opinion of the medical specialist has been overruled by the RME Board in this case which need not comprise a specialist in the abovsaid field, and without complying with the strict terms and conditions of the applicable norms given on page nos. 45 & 46 of the guidelines of the RME Board as mentioned hereinabove. Thereafter, this case was also rejected for interdiction or remit.
11. The 3rd appellant was declared unfit by the DME Board out of systolic hypertension, and overweight. He had also secured certification by expert while submitting his Form 3 appeal which certify that his pressure was normal and stated that he is not suffering from any medical defects. In the instant case, the RME Board has rejected the case of the 3rd appellant citing the very same ground invoked by the DME Board and in violation of the guidelines. Here, we have to make reference to the details in relation to the 2nd alleged defect, which is the alleged defect of overweight. It is common ground that the appellant was of the age 24 years, and that his body weight is 77 kg and that his height is 183 cm. It is well known that for a person having 183 cm height, the BMI should W.A Nos.924, 938 & 1020 of 2021 22 be within the body weight limit of 83 kg. Clause 'd' of para 2 given on page 3 of the guidelines reads as follows:
" d) Measurement of physical standards viz. height, weight, and chest is the responsibility of the Physical Standard Test Board (PST Board) for all categories of candidates ie GOs, SOs and Ors Medical officers will not be part of PST board both for Male & Female. candidates. Since presence of a female is required at the time of recording of physical standard (PST), a female non medical staff may be. associated with PST board. Recruiting medical officer need not record to physical measurements. Recruiting medical officer will mention physical standard in the medical examination form as recorded by the PST board In borderline cases of overweight, BMI should also be considered to arrive at conclusion and variation of 5Kg +/- from the minimum/maximum limit may be accepted Similarly while measuring height fraction of cm less that 0.5 will be ignored and 0.5 cm & more will be rounded off to the next higher cm."
12. It is stipulated that if the borderline cases of overweight, the BMI should also be considered to arrive at a conclusion with variation of kilograms +/- the minimum/maximum limit is acceptable. Further, page 46 of the guidelines deals with the limits of body weight vis-a-vis height and weight of the participant concerned. The said tabular data does not explicitly deal with the case of a person having height 183 cm. However, data for 182 cm and 184 cm are given and we are told by both sides, in such cases, the figure is to be arrived on the basis of average, as the height in this case (183 cm) is between height of 182 cm and 184 cm. Therefore, the outer limit for 182 cm height is 76.5 kg and the outer limit for a person having height 184 cm is 78.5 kg. The average of the two would come to 77.5 kg. In the instant case, the appellant would point out W.A Nos.924, 938 & 1020 of 2021 23 that his body weight, going by the assessment of the DME Board and the RME Board, is 79 kg. The weight of the 3 rd appellant as recorded by the RME Board is 79.2 kg. (See Ext.P-10 on page 106 of the paper book of this appeal). The appellant would point out that the variance limit of +/- 5 kg vis-a-vis the upper limit of 77.5 kg is acceptable and if that be so, it could go up to 82.5 kg. In the instant case, even going by the version of the RME Board, his body weight is 79.2 kg (see Ext.P-10 on page 106 of the appeal) Further that, this will be subject to the criteria that the said weight shall not exceed the permissible BMI criteria gain, which for a candidate having 183 cm is up to 83 kg. Since, on applying the variance limit, it could go up to 82.5 kg and since the said figure of 82.5 kg is less than the BMI criteria limit of 83 kg, the candidate could not have been lawfully disqualified etc. These aspects of the matter have been dealt with by us in a judgment rendered yesterday (28.10.2021) in the case of the sole appellant in W.A.No.700/2021. Be that as it may, it is candidly admitted by the official respondents before us that the RME Board did not contain an expert, and no details are given as to whether they have followed and applied the variance limit,etc. For all these reasons, we are of the view that this case would also require interdiction.
13. Here also, the impugned rejection action rendered at the W.A Nos.924, 938 & 1020 of 2021 24 instance of the RME Board is vitiated by impropriety, illegality and unreasonableness, etc warranting invocation of interdiction of judicial remedy. Hence, the impugned rejection orders based on the decision making of the RME Board will stand quashed in these three cases. The matter will stand remitted to the RME Board for decision afresh and strictly in compliance of the terms and conditions of guidelines mentioned hereinabove.
14. The abovesaid process shall be duly completed by the RME Board and the official respondents concerned without much delay, preferably within a period of 6 weeks from the date of production of a certified copy of this judgment.
15. Here also the official respondents will ensure that 3 vacancies in the post of General Duty Constables in the CAPF are kept vacant to consider and protect the claims of the three appellants herein. The abovesaid aspects have not been duly considered in the rendering of the impugned judgment in this WP(C). Hence, the impugned judgment dated 7.4.2021 in WP(C) No. 26149/2020 will stand set aside.
With these observations and directions, the above Writ Appeal will stand disposed of.
W.A Nos.924, 938 & 1020 of 2021 25 W.A.No.1020 of 2021
16. The case of the sole appellant in this case for selection in the abovesaid post, was earlier rejected by the DME Board on the ground that he suffers from 4 defects. We are not concerned with the first three defect. Admittedly, the first three defects were later waived and overruled by the official respondents themselves. The defect noted in Ext.P-1 and which is relevant in our present case is that he has 'fainting (syncope)' as found out during DME process (See Ext.P-1 on page 68 of the paper book of this writ appeal). He had submitted Form 3C appeal along with medical certification at Ext.P-2 given by a qualified expert in the specialty of General Medicine having MD(General Medicine) serving the Kerala Health Services certifying that the clinically cardio vascular system and blood pressure - normal and next observations are not fully legible, and it broadly says and indicates that there is no hyper tension, etc. (See Ext.P-2 on page 69 of the paper book of this writ appeal). Further, it is certified therein that the earlier defect noted was on an error and the candidate is found medically fit, etc. The RME Board has rejected the case of this appellant (See Ext.P-4 on page 71 of the paper book of this writ appeal) stating that he is unfit due to 'Mild Mitral Valve Prolapse Trivial MP TR'. It is admitted before us by the official respondents that W.A Nos.924, 938 & 1020 of 2021 26 the Ext.P-4 assessment by the RME Board has not been done by a specialist in the field of General Medicine or a super specialist in the field of cardiology. Since, Ext.P-2 certification is given in favour of the appellant by a qualified general physician in the broad specialty of General Medicine, it is not as if the RME Board can never controvert it, but if have to consider to controvert it, then the abovesaid applicable guidelines will be binding on them which requires reference to the specialists/super specialist of government institution/medical colleges/private medical centres, etc. as the case may be, as mentioned in the norms given on page 44 of the guidelines mentioned supra. In the instant case, the RME Board has not referred the matter to the Super Specialist in Cardiology of Medical College/Govt. Medical Institutions, etc as per the above guidelines.
17. We say so as para 2 of norms on page 44 of the guidelines which deals with the RME Board process stipulates that the process of controversion can be invoked by referring to specialist/super specialist, as the case may be of Medical Colleges, etc. Therefore, the procedure would make it clear that in a case where controversion process can be effectively done, on the basis of a reference to the specialist/super specialist of Medical Colleges, etc then that may suffice. Moreover, apart W.A Nos.924, 938 & 1020 of 2021 27 from these normative aspects, it also be borne in mind that the aspect would require serious reconsideration taking note of the aspects borne out from Exts.P-1, P-2 and P-4. Therefore, fairness and reasonableness would require that the matter has to be resolved by a process of reference to a super specialist in the field of cardiology. Since, the same has not been done, we are of the considered view that the the norms of the guidelines are applicable in the case as well.
18. We make it clear that we have not entered into the merits of the controversy in any manner. We have only examined the nature of decision making process, as to whether the same is in breach of the well known grounds of public law remedy of judicial review, like the grounds of procedural impropriety, illegality, unreasonableness, unfairness, etc. Accordingly, this case would also require interdiction. We make it clear that all what we have stated is that the procedure has to be complied with strictly so that fair and expert decision is taken by the medical experts in the fields concerned, so that the rights and interest of both sides are duly protected. In that view of the matter it is ordered that the impugned rejection order based on the RME Board decision will stand set aside and quashed. The matter will stand remitted to the RME Board for decision afresh and strictly in compliance of the terms and conditions of W.A Nos.924, 938 & 1020 of 2021 28 guidelines mentioned hereinabove. The abovesaid process shall be duly completed by the RME Board and the official respondents concerned without much delay, preferably within a period of 6 weeks from the date of production of a certified copy of this judgment.
19. The aspects mentioned hereinabove have not been duly considered in the rendering of the impugned judgment in this WP(C). Hence, the impugned judgment dated 7.4.2021 in WP(C) No. 26254/2020 will stand set aside.
With these observations and directions, the above Writ Appeal will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
VIJU ABRAHAM, JUDGE vgd, MMG W.A Nos.924, 938 & 1020 of 2021 29 APPENDIX OF WA.NO.1020/2021 PETITIONER'S ANNEXURES:
ANNEXURE A TRUE COPY OF THE ECHOCARDIOGRAPHY REPORT DATED 07/07/2021 ALONG WITH PATIENTS DEMOGRAPHICS OF THE APPELLANT.
ANNEXURE B TRUE COPY OF THE RELEVANT PAGES OF THE
GUIDELINES FOR RECRUITMENT MEDICAL
EXAMINATION IN CENTRAL ARMED POLICE FORCES
AND ASSAM RIFLES.