Jammu & Kashmir High Court
Rakesh Kumar vs Union Of India Through Secretary on 10 October, 2023
Author: Puneet Gupta
Bench: Puneet Gupta
Sr. No.25
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case : SWP No. 2176/2016
CM No. 1625/2021
1. Rakesh Kumar, Age 25 years,
S/o Sh. Janak Raj,
R/o Village Pindi Charkan Kalan
Tehsil Arnia, District Jammu.
2. Lekh Raj, Age 28 years,
S/o Shish Paul,
R/o Village Chohala,
Tehsil R.S.Pura, District Jammu.
3. Sat Paul, Age 22 years,
S/o Mani Ram R/o Village Jourian
Tehsil Akhnoor, District Jammu.
4. Varun Raj, Age 22 years,
S/o Bharat Bhushan R/o Village
Jourian, Tehsil Akhnoor, District
Jammu. .....Petitioner(s)..
Through :- Mr. Rajesh Bhushan, Advocate.
Vs
1. Union of India through Secretary
Ministry of Home Affairs, Sena
Bhawan, New Delhi.
2. Secretary to the Government of India
Ministry of Personnel, Public
Grievances and Pensions, New
Delhi.
3. Director Staff Selection Commission,
Block No.12, Cgo Complex, Lodhi
Raod, Delhi-110003.
4. Regional Director Staff Selection
Commission (NWR) Block No.3, Gr.
Floor, Kendriya Sadan Sector-09,
Ground Floor Chandigarh-160017.
5. Deputy Regional Director Staff
Selection Commission (NWR) Block
No.3, Gr. Floor, Kendriya Sadan
Sector-09, Ground Floor Chandigarh,
160017.
6. Director General, Central Reserve
Police (CRPF) Block No. 1, C.G.O
Complex Lodhi Road, New Delhi
110003.
7. Inspector General of Police (IGP),
Central Reserve Police Force
2 SWP No. 2176/2016
(CRPF), Bantalab, Jammu.
8. Inspector General (IG), Border
Security Force (BSF), Paloura Camp, .....Respondent(s)..
Jammu.
Through :- Mr. Sandeep Gupta, CGSC.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
10.10.2023
1. The amended writ petition has been preferred by the petitioners seeking inter alia the following reliefs:-
i) Certiorari for the quashment of the report of medical board and review medical board vide which petitioners were declared as medically unfit for the reason that petitioners were having tattoos on their body.
ii) Mandamus commanding the respondents to select and appoint the petitioners as constables in the paramilitary forces against the vacancies advertised by the respondent Staff Selection Commission published in the employment news/Rozgar Samachar dated 24.01.2015 as petitioners are duly selected for the said post by the respondents but the respondents have denied the same to the petitioners in an arbitrary and malafide manner.
iii) Any other order or direction which this Hon'ble Court deems fit and proper may kindly be issued in favour of the petitioners and against the respondents."
2. Brief facts of the case as projected in this petition are that the petitioners in response to an Advertisement Notice published in the employment new paper/Rozgar Samachar dated 24.01.2015 issued by 3 SWP No. 2176/2016 the respondents, the petitioners being fully eligible for the post of Constable GD in Border Security Force (BSF) cleared all the examinations. It is pertinent to mention here that petitioner Nos. 1 &2 applied under SC category and petitioner Nos. 3 & 4 applied under OBC category. Learned counsel for the petitioners submits that the physical standards test of the petitioners was held on 08.06.2015 at STC BSF Camp, Udhampur. The petitioners participated in the said test and were declared as qualified by the respondents. They were, thereafter, called for written examination and were qualified the same. Learned counsel for the petitioners further submits that a detailed medical examination of the petitioners was held at BSF Campus, Udhampur. However, during the course of medical examination, the petitioners were declared as medically unfit by the respondents as some tattoo marks were found present on the arms and other body parts of the petitioners. After the petitioners were declared medically unfit, they were informed that in case they intend to file an appeal against the finding of the medical examination declaring them medically unfit for the post, they shall have to apply for review for medical examination after obtaining necessary medical certificate from any Civil Medical Practitioners within a period of fifteen days.
3. Learned counsel for the petitioners further submits that the petitioners underwent a surgery for the removal of the said tattoos from their body at the instance of the respondents and after surgery the said tattoos were removed and were declared as medically fit by the Doctors who operated upon the petitioners. After obtaining the medical fitness certificate, the petitioners filed an appeal before the 4 SWP No. 2176/2016 respondents for the review of the findings of medical board. The appeal was considered by the competent authority and, accordingly, the petitioners were again declared unfit despite the fact that the said tattoos already stands removed by the petitioners after undergoing surgery.
4. The impugned action of the respondents has been challenged by the petitioners on the grounds that the tattoos found on the arms and other body parts of the petitioners had no affect on the working of a Constable GD in BSF.
5. On being put on notice, the respondents have filed their objections in which it is submitted that the certificates obtained by the petitioners from the Doctor in general in nature, as according to the said Doctor, the petitioners may be fit to serve in civil department because of the nature of duties to be performed in civil job which are entirely different from the nature of duties of the Armed Forces. It is further submitted that the recruitment process have been observed judiciously, meticulously and only medically fit and successful candidates have been considered for appointment of the post of Constable GD in said recruitment, whereas the petitioners could not qualify in medical/review medical examination for the recruitment of the post of Constable GD. Therefore, no fundamental as well as legal right of the petitioners have been violated by the respondent- authorities, which forced them to approach before this Hon'ble Court.
6. Heard learned counsel for the parties and perused the material on record.
7. The record shows that the petitioners have successfully cleared all the 5 SWP No. 2176/2016 tests. However, their candidature were rejected by the Review Medical Board on the ground that there is a post surgical scar on right forearm i.e. saluting arm and right upper arm of the petitioners and that the surgical removal of the tattoos may develop keloids.
8. During the course of arguments guidelines for recruitment/medical examination in CAPF and Assam Rifles which was revised in May 2015, Chapter-XII and concerns with the examination for skin diseases and leprosy were referred to by the counsels. The candidate can be rejected on the medical ground also if there is congenital or acquired anomalies of skin such as nevi or vascular tumors that therefore with function or are exposed to constant irritation. History of Dysplastic Nevus Syndron is disqualifying. Also, Keloid formation, if the tendency is marked or interferes with proper wearing of combatised equipment, is disqualifying.
9. Learned counsel has referred to sub-clause (3) of Clause 11 of Chapter-XII which deals with tattoo condition. The same is reproduced as under:
"3.Tattoo: The practice of engraving/tattooing in India is prevalent since time immemorial, but has been limited to depict the name or a religious figure, invariably on inner aspect of forearm and usually on left side. On the other hand the present young generation is considerably under the influence of western culture and thus the number of potential recruits bearing skin art had grown enormously over the years, which is not only distasteful but distract from good order and discipline in the force.
Following criteria are to be used to determine permissibility of tattoo:
(a)Content-being a secular country, the religious sentiments of our countrymen are to be respected and thus tattoos depicting religious symbol or figure and the same, as 6 SWP No. 2176/2016 followed in Indian Army, are to be permitted.
(b)Location- tattoos marked on traditional sites of the body like inner aspect of forearm, but only left forearm, being non saluting limb or dorsum of the hands are to be allowed.
(c) Size-size must be less than ¼ of the particular part (elbow or hand) of the body".
Sub-clause (4) of Clause 11 of Chapter XII deals with Post-operative cases (duration of fitness) which too is reproduced hereunder:
"4.Post operative cases (Duration for fitness)-
(a) Body surface swelling, DNS, Tonsillectomy and nasal polypectomy-01 month;
(b) Hydrocele-03 months;
(c)Tympanoplasty-04 months; and,
(d) Abdominal"
This is all prescribed in the revised Guidelines of 2015 which are relevant for determining the issue on hand.
10. It cannot be disputed that the doctors certifying the removal of tattoo have also certified that the petitioners are medically fit for the post in question. The Medical Board while reviewing the case of the petitioners have not mentioned that inspite of the fact that the tattoos stands removed from the forearm of the petitioners, they cannot otherwise perform their functions of Constable GD and, therefore, should not have normally been the reason for declaring the petitioners unfit for the job.
11. Learned counsel for the petitioners has referred to the judgment passed by this Court in case titled Sunil Kumar v. Union of India and others, decided on 21.02.2023 and argued that the same applies in the case in hand.
12. Learned counsel for the respondents could not counter the argument of counsel for the petitioner though he feebly tried to argue that the case of 7 SWP No. 2176/2016 the petitioners is different from the one in writ petition SWP No. 2108/2016. The guidelines altogether disqualify the petitioners from being considered for the post, as argued by respondents, cannot be accepted, if they can otherwise perform the duties efficiently.
13. The Court is of the view that the judgment of Sunil Kumar (supra) applies on all fours in the present petition and the court need not take the view different from the one taken in the said writ petition.
14. The petition can be disposed of as per the directions given in the said writ petition.
15. Accordingly, the petition is allowed and the respondents are directed to again convene the Medical Board for re-examination of the petitioners and offer them appointment, if they are found fit to perform the duties of Constable GD in terms of the revised guidelines of 2015. The needful shall be done within a period of three months from the date a certified copy of this judgment is made available with the concerned respondent(s).
16. Disposed of in above terms.
(PUNEET GUPTA) JUDGE Jammu :
10.10.2023 Pawan Chopra Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No PAWAN CHOPRA 2023.10.12 16:36 I attest to the accuracy and integrity of this document