Central Administrative Tribunal - Delhi
Pankaj Kumar vs Staff Selection Commission (Ssc) on 22 November, 2022
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Item No. 36 O.A. No. 1255/2022
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1255/2022
This the 22nd day of November, 2022
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Tarun Shridhar, Member (A)
SH. PANKAJ KUMAR
S/O BHOOPENDRA SAMRIA
R/O C-41 CHANDAN VIHAR, GALI NO.19
PHASE 2, NIHALVIHAR, NANGLOI, NILOTHI,
WEST DELHI, PIN CODE-110041
..APPLICANT
(By Advocate: Ms. Debasmita Goswami with Mr. Ashish
Rana)
VERSUS
STAFF SELECTION COMMISSION
GOVERNMENT OF INDIA
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES &
PENSIONS,
DEPARTMENT OF PERSONNEL AND TRAINING,
BLOCK NO. 12, CGO COMPLEX, LODHI ROAD
NEW DELHI 110003
...RESPONDENT
(By Advocate: Mr. Ram Kumar Dhillon)
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Item No. 36 O.A. No. 1255/2022
ORDER (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A) Aggrieved by the rejection of his candidature in the selection examination for the post of Sub Inspector in Delhi Police and Central Armed Police Forces Examination, 2020 on the ground of medical unfitness, the applicant has approached this Tribunal by virtue of the present original application seeking the following reliefs :
i) Quash and set aside the impugned order of the Respondent placed at Annexure A 1 dated 22/04/2022 and 23/04/2022.
ii) Direct the Respondent to conduct a Second Review Medical Examination.
iii) Direct the Respondent to reconsider the case of the Applicant treating him fit candidate for the post of Sub- Inspector;
2. Briefly stated, the Staff Selection Commission vide its notification dated 17.06.2020 invited applications for the post of Sub-Inspector in Delhi Police and Central Armed Police Forces (CAPF). The applicant was one of the applicants for the said examination and he successfully participated in the same and cleared all the stages of the selection process on merit. However, despite such a success, he 3 Item No. 36 O.A. No. 1255/2022 has been denied appointment on the ground that he does not meet the criteria set for medical fitness. The only infirmity pointed out in the medical examination is the presence of a tattoo on his right forearm.
3. At the outset, learned counsel for the respondent opens his argument by raising an objection with respect to the jurisdiction of this Tribunal over the matter.
4. However, learned counsel for the applicant points out that such an objection has not been raised by the respondent in the counter reply.
5. The ground on which the learned counsel for the respondent raises the objection of jurisdiction is that the said examination was for selection to the post of Sub-Inspector in Central Armed Police Forces and the CAPF has been defined as armed forces of the Union, and the Administrative Tribunals Act, 1985 vide Section 2, specifically bars jurisdiction of this Tribunal over the armed forces of the Union.
6. To support his contention, he submits before us a judgment passed by this Tribunal on 04.09.2014 in O.A. No. 145/2014 vide which it was held that 4 Item No. 36 O.A. No. 1255/2022 recruitment to CAPF shall fall outside the jurisdiction of this Tribunal as CAPF have been defined as an armed forces of the Union.
7. However, learned counsel for the applicant strongly contests this statement pointing out that the said judgement of this Tribunal was subsequently set aside by the Hon'ble High Court in WP (C) 7356/2014. The Hon'ble High Court while setting aside the judgement of this Tribunal has observed that the Staff Selection Commission was conducting the examination/ recruitment process in respect of several categories of forces and at least one, if not more of them, pertains to posts/ services, which are notified in the list.
8. We note that in the instant matter, the vacancy notice was with respect to the post of Sub-Inspector in Delhi Police and Central Armed Police Forces. It is accepted by all and notified that Delhi Police and recruitment to its various posts squarely falls within the jurisdiction of this Tribunal. Moreover, the issue of jurisdiction with respect to the various CAPF and other uniformed forces of the Union of India has also been conclusively dealt with and decided recently by a 5 Item No. 36 O.A. No. 1255/2022 full bench of this Tribunal in O.A. No. 42/2020 in case titled Kapil Gurjar vs. Ministry of Railways. Therefore, we settle this objection raised by the learned counsel for the respondent by holding that while adjudicating upon the present matter, we shall be strictly adhering to the jurisdiction vested upon us under the Administrative Tribunals Act, 1985.
9. Coming to the merits of the case, the issue is very limited. The applicant had a tattoo on his right forearm and the appropriate authority considered that due to this distinctive mark on his right forearm, the applicant incurred an unfitness for selection to the post of Sub Inspector. The fact that the applicant got the tattoo removed and thus got rid of this so called medical infirmity which was held to render him unfit for the post, has not been subsequently considered by the respondent.
10. Learned counsel for the respondent relies upon various instructions on the subject which he has appended with his counter reply and draws particular attention to a letter dated 12.01.2017, Annexure R-7 which bears the subject "Policy for recruitment of candidates in CAPFs having tattoos on various part of 6 Item No. 36 O.A. No. 1255/2022 body - regarding." He specifically quotes the following :
"(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 hand are to be allowed."
11. However, we find that this instruction is basically an advice to the recruiting agencies and the concerned departments to insert a clause in their guidelines and recruitment notices with respect to this provision on the subject of tattoos.
12. Learned counsel for the applicant has drawn our attention to the recruitment notice which does not make any express mention that presence of a tattoo will amount to a disability as far as the medical fitness for the said post is concerned. On the other hand, the learned counsel for the respondent draws attention to the document he has placed as Annexure R-5 bearing the subject "REVISED UNIFORM GUIDELINES FOR REVIEW MEDICAL EXAMINATION IN CENTRAL ARMED POLICE FORCES AND ASSAM RIFLES FOR GOs & NGOs : AMENDMENT THEREOF", 7 Item No. 36 O.A. No. 1255/2022 submitting that the medical guidelines annexed thereto clearly indicate that the Review Medical Examination is to be held on the next date of the main Medical Examination and in the instant case, when the Review Medical Board examined the applicant again on the next date, the disability/ infirmity of the tattoo was still there. Accordingly, in terms of the guidelines, the applicant is rendered unfit to hold the position of Sub Inspector.
13. However, we note that the guidelines being relied upon by the learned counsel for the respondent are dated 31.05.2021 whereas the subject of the present O.A. is a vacancy notice of the year 2020, precisely 17.06.2020.
14. Therefore, we have no hesitation in holding that this these guidelines could not have been applied retrospectively. Moreover, the guidelines are impractical in present situation as a tattoo cannot be got rid of at a short notice of one day.
15. Moreover, learned counsel for the applicant has submitted before us a recent judgement of the Hon'ble High Court of Delhi dated 20.05.2022 in W.P. (C) No. 8 Item No. 36 O.A. No. 1255/2022 7786/2022. It would be appropriate, for the sake of clarity to reproduce the said judgment verbatim :
1. The present writ petition has been filed by the petitioner seeking quashing of the findings of the Detailed Medical Examination dated 21.04.2022 and the Review Medical Examination dated 22.04.2022 for the post of Sub-Inspector in Delhi Police and Central Armed Police Forces Examination 2020 or respondents may be directed to conduct fresh Detailed Medical Examination for the petitioner; quashing of the Tattoo Policy as contained in Clause 11.12 of the Sub-Inspector in Delhi Police and Central Armed Police Forces Examination 2020 to the extent that it fails to differentiate between the very appearance of the tattoo i.e. how light or dark it is and how visible it actually is.
2. Case of petitioner is that petitioner was found unfit in Detailed Medical Examination dated 21.04.2022 and thereafter, in Review Medical Examination dated 22.04.2022 for the post of Sub-
Inspector in Delhi Police and Central Armed Police Forces Examination 2020 on the ground that petitioner has tattoo on the right arm which is not permissible.
3. Petitioner has appeared in person and this Court has seen the tattoo on the right forearm of the petitioner which has "P.S.", i.e. initials of his name Pradeep Singh depicted.
4. Notice issued.
5. Learned Senior Panel Counsel for respondents accepts notice and has opposed the present petition by submitting that right arm is saluting hand and therefore, this tattoo is not permissible as per the 9 Item No. 36 O.A. No. 1255/2022 guidelines issued vide advertisement dated 17.06.2020 for the post of Sub-Inspector in Delhi Police and Central Armed Police Forces Examination, 2020.
6. On enquiry from the petitioner, this Court has been told that the petitioner is willing to remove the said tattoo on the right arm and that the same can be removed by a minor laser surgery. This Court also finds from the Detailed Medical Examination dated 21.04.2022 and the Review Medical Examination dated 22.04.2022 that barring the said tattoo there were no other defects found in the petitioner. Further, it is a matter of fact that the petitioner has already qualified the written examination for the said post and that the petitioner is currently serving as Constable in the Delhi Police.
7. Keeping in view the aforesaid position as well as in the interest of justice, we hereby dispose of the present petition by giving liberty to the petitioner to appear before the freshly constituted medical board of the respondents after two weeks from today after having the tattoo in the right arm removed and in case the petitioner is found fit by the said medical board, the respondents shall further process the selection of petitioner for the post in question in accordance with law.
8. With the aforesaid directions, the present petition stands disposed of.
9. Pending application also stands disposed of. Copy of this order be given dasti under Signatures of Court Master.
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16. The facts, circumstances as also the issues involved in the present O.A. are identical. Accordingly, there is no cause for us to take any divergent view.
17. In the light of the facts and the discussion detailed above, the present O.A. is allowed. The impugned orders dated 22.04.2022 and 23.04.2022 are quashed and set aside. The respondent is directed to constitute a board for the second Review Medical Examination forthwith and in case the applicant is found fit, give him appointment subject to his meeting all other eligibility criteria and qualifications, within a period of 4 weeks' thereafter.
18. The action with respect to constitution of a medical board and conducting the Review Medical Examination, shall be taken to its logical conclusion within 4 weeks' from the date of this order. It is made clear that the fact that the applicant had a tattoo which has subsequently been removed, shall not be held against the applicant in the said medical examination.
19. In the event of the applicant being found fit and qualified for appointment, he shall also be entitled to 11 Item No. 36 O.A. No. 1255/2022 all consequential benefits in terms of seniority and fixation of his pay and allowances, albeit on notional basis only.
20. The OA stands allowed against the background of these directions.
There shall be no orders as to costs.
(Tarun Shridhar) (R. N. Singh) Member (A) Member (J) /NISHA/