Tripura High Court
Sri Shambhu Debnath vs The Union Of India on 2 February, 2022
Author: Indrajit Mahanty
Bench: Indrajit Mahanty
Page - 1 of 19
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.718/2020
Sri Shambhu Debnath,
S/o Sri Mantu Debnath of Hatipara,
P.O - Salbagan, P.S. Airport, Agartala, West Tripura.
............... Petitioner(s).
Vs.
1. The Union of India, represented by the Ministry of Home Affairs,
Government of India.
2. The Under Secretary,
Staff Selection Commission, Block No. 12, CGO Complex, Lodhi
Road, Near JLN Stadium, New Delhi, Delhi - 110091.
3. Staff Selection Commission
Represented by Chairman, Block No.12, CGO Complex, Lodhi
Road, Near JLN Stadium, New Delhi, Delhi -110091.
4. North Eastern Regional Office,
Staff Selection Commission, Gauhati, represented by Regional
Director, Housefed Complex, West End Block, Last Gate -
Basistha Road, P.O. Assam Sachivalaya, Dispur, Gauhati -781006.
5. Director General,
CRPF (Central Reserve Police Force) (Recruitment Branch) East
Block - 07, Level - 4, Sector - 01, R.K. Puram, New Delhi -110066
(Ministry of Home Affairs).
6. Review Medical Examination Board,
represented by the Presiding Officer/LMO, AR, West Tripura
Centre, Conduct of RME of Combined Rect Rally for Constable
GD In CAPFs and Rfn.(GD) in AR 2018, Kunjaban, Assam Rifles,
Agartala, West Tripura, Pin - 799006
............... Respondent(s).
_B_E_ F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
For Petitioner(s) : Ms. R Purkayastha, Advocate.
For Respondent(s) : Mr. Bidyut Majumder, Asstt. S. G.
Date of hearing & judgment : 2nd February 2022.
Page - 2 of 19
Whether fit for reporting : Yes.
J U D G M E N T (O R A L)
Heard learned counsel for the respective parties. [2] This writ petition has come to be filed by the petitioner, namely Sri Shambhu Debnath who appeared in the selection process pursuant to one advertisement dated 21st July 2018 issued by the Staff Selection Commission for recruitment to the post of Constable (GD) in the Central Armed Police Forces (CAPFs), NIA, SSF and Rifleman (GD) in Assam Rifles (AR). The recruitment process adopted consists of a Computer Based Examination, Physical Efficiency Test, Physical Standard Test and Medical Examination. The petitioner, admittedly, was declared qualified in the Computer Based Examination, Physical Efficiency Test and Physical Standard Test. It is further stated that on 24th January 2020, the petitioner appeared for Detailed Medical Examination (DME) and after going through the test, he has been declared unfit/unqualified inter alia on the ground that the petitioner had a huge "naevus" on right side of his abdomen. Although the petitioner claimed that the said nevus was a birthmark and it is also alleged that the guidelines do not anywhere prescribe rejection in the event a candidate is found with nevus. Yet since Page - 3 of 19 the petitioner was declared unfit/unqualified he filed the present writ petition.
[3] A counter-affidavit came to be filed by the respondents and it may be pertinent to note herein that this Court vide order dated 20th October 2020 directed the respondents to include the petitioner in the final select list provisionally subject to further orders that may be passed in this petition and through affidavit dated 12th April 2021, it is admitted by the respondents that pursuant to said direction one post has been kept reserved awaiting outcome of the present writ petition.
[4] Further, in course of hearing of the matter, this Court passed the following order on 18th November 2021 :
"18/11/2021 Heard learned counsel for the respective parties. The main issue that arises for consideration at the present juncture in the case is relating to Annexure-I which is a report submitted by the Review Medical Board in respect of examination of the petitioner Shambhu Debnath. The said report appears to have been prepared by a Board of doctors of the Conduct of RME of Combined Rect Rally for Constable GD in CAPFs and Rfn (GD) in AR 2018 which is extracted hereinbelow :
"FORM NO.4 OF CONSTABLE (GD) EXAM-2018 REVIEW MEDICAL EXAMINATION REPORT Roll No. : 5601003543 Name of Candidate : SHAMBHU DEBNATH Page - 4 of 19 Gender : Male Father's/Husband Name : MANTU DEBNATH Identification Marks:
(i) A BLACK MOLE ON BACK OF NECK
(ii) A BLACK MOLE ON GLABELLA
Candidate's Signature (in presence of the Medical Board) Sd/- (Shambhu Debnath) (1) Reason for Medical Unfitness : Huge Nevus on Rt.
Side of abdomen.
(2) Brief of Review Medical Examination & Finding thereof :
Huge Becker's Nevus on Rt. Lower trunk (both front & back) (3) Final Opinion:
(a) FIT : ...................
(b) UNFIT on account of: Huge Nevus which may have underlying Congenital anomalies & may further turn into tumor."
The report speaks for itself. The learned Asstt. Solicitor General on behalf of the Union of India drew the attention of this Court to Office Memorandum dated 20.05.2015 issued by the Ministry of Home Affairs and in particular, Chapter-XII under the heading "Examination for Skin Diseases and Leprosy" and (B) stipulates other conditions which are to be considered for rejection. Sl. No.8 thereof reads as follows:
"8. Congenital or acquired anomalies of the skin such as nevi or vascular tumors that interfere with function, or are exposed to constant irritation are disqualifying. History of Dysplastic Nevus Syndrome is disqualifying."
Apart from that learned Asstt. S.G. also draws the Court‟s attention to Clause-C of the terms and conditions of the Computer Based Examination held by the Central Armed Police Forces for recruitment of Constables (GD) and Rifleman (GD) dated Page - 5 of 19 21.07.2018 and in particular to Clause-C under the heading "General Grounds for Rejection during Medical Examination", the relevant portion of which is extracted hereinbelow :
"(xxvii) Any congenital abnormality, so as to impede efficient discharge of training/duties.
(xlvii) xxx xxx xxx
(n) Any other abnormality if so considered by
the specialist."
This Court also takes note of the dictionary definition of the term "Nevus" from the Concise Oxford English Dictionary, Twelfth Edition which states as follows :
"A birthmark or a mole on the skin, especially a birthmark in the form of a raised red patch."
On a reading of the aforesaid as pointed out by the learned Asstt. S.G. not every congenital abnormality can amount to a disqualification or rejection. It is only such congenital abnormality which may impede the efficient discharge of training and/or duties which may be a ground for rejection. Apart from the above, even in the 2015 notification under Annexure-R/2 as quoted hereinabove in para-B(8) thereof it is only all congenital or acquired abnormalities of the skin such as nevi or vascular tumors that interfere with function or exposed to constant irritation are disqualifying. In other words, even if a person is suffering from the skin disease such as nevi, such a candidate cannot be disqualified unless and until the Medical Board come to a conclusion that the nevi which is determined to be a birthmark and/or a mole in the Oxford Dictionary as quoted hereinabove should be such which may interfere with the function or is exposed to constant irritation which may amount to a disqualification.
It is stated by the learned counsel for the petitioner that the petitioner has no irritation and the marks pointed out in the Page - 6 of 19 Medical Review opinion was merely non-definitive. It is stated by the petitioner‟s counsel that he has no irritation and is a birthmark from birth and the petitioner is not suffering from any irritation of that area as well nor does the said birthmark nevi in any manner will interfere with either his training or in due discharge of his duties.
Learned counsel for the petitioner further brings to the notice of the Court the declaration contained in Form-3 of the petitioner and signed by the Medical Officer of the AGMC that the huge nevus on the right side of the abdomen of the petitioner and has stated that the said nevus is a benign condition and no treatment was required for the same.
In view of the aforesaid facts, this Court is of the considered view that a fresh Review Medical Examination Board be constituted by the respondent No.6 making sure that the doctors who were there in the earlier Medical Board are not members of the fresh Review Medical Examination Board who shall take into consideration all the above as noted hereinabove including the conditions imposed in the examination stipulations, the notification of the Government of India as well as the certification granted by the Medical Officer of the AGMC and shall review the case of the petitioner. This is so because this Court is of the prima facie view that the report and the language used in the report is merely non- definitive to the extent that the huge nevus "may" have underlying congenital anomalies and "may" further turn into tumors. Such a finding on the part of the earlier Review Medical Examination Board appears to this Court to be clearly non-definitive and, therefore, requiring a detailed scientific evaluation of the petitioner by a fresh Review Medical Examination Board who shall not be influenced by the report submitted under Annexure-I to the writ petition, i.e. the earlier Review Board‟s opinion.
The learned Asstt. S.G. is requested to communicate this order to the concerned respondent No.6 for necessary compliance.
Page - 7 of 19 For such purpose the petitioner shall appear before respondent No.6 next Wednesday (24.11.2021) and the Head of the Review Medical Examination Board who shall be a skin specialist may direct the petitioner to appear on any particular date suitable to the reconstituted Board and the Review Medical Examination Board shall complete the exercise of reevaluation of the petitioner after carrying out medical tests as may be required and submit its report in a sealed cover to this Court through the office of the learned Asstt. S.G. within a period of a fortnight from the date of his appearance.
List this matter on 23.12.2021.
A copy of this order be handed over to learned Asstt. S.G. for necessary communication to respondent No.6." [5] Pursuant to the aforesaid directions, examination of the petitioner was conducted by the Review Medical Examination Board and the Review Medical Examination Board submitted its report in a sealed cover to the Court under its covering letter dated 17th December 2021which is quoted herein below :
Appendix -"A"
RESULT OF REVIEW MEDICAL EXAMINATION TO RRC FOR RECRUITMENT OF CONSTABLE (GD) EXAM 2018 RME CENTRE : ASSAM RIFLES MULTISPECIALITY HOSPITAL, LAITKOR.
Name of BG Distt.
Name of candidate (DD/MM/YYYY) Husband‟s Name Remarks, if any.
Name of Naxal/ Militancy Dist.
(male/Female) State/UT code Date of RME Date of Birth FIT/UNFIT Final result Gender Category Father‟s/ Roll No. Ser No. 1 5601003543 SHAMBHU MANTU 04/03/1996 MALE OBC 33 WEST WEST 30/11/21 FIT -
DEBNATH DEBNATH TRIPURA TRIPURA to
10/12/21
Page - 8 of 19
Hence the Review Medical Examination Board has come to a conclusion that the petitioner is otherwise physically fit.
[6] It appears that a further ground was raised by the respondents under communication of a letter dated 14th December 2021 addressed to the Assistant Solicitor General of India to the following effect :
"1. Pl refer to the Court Order dated 18.11.2021 passed in the subject matter.
2. It is intimated that the copy of Board Proceedings on conduct of fresh Review Medical Examination in r/o of the petitioner (Shri Shambhu Debnath) and Directorate General CRPF letter No.A-VI- 285/2018-RECTT(SSB)-CT/GD-2018 dated 25th Nov 2021, wherein, it has been stated that "CBE marks of petitioner is less than the marks of last selected candidate as already informed to your office, hence the petitioner will not find place in merit list of provisionally selected even he will be declared FIT in RME", are fwd herewith. You are requested to take the needful action as per the direction of the ibid Court Order.
3. Expedite action, pl."
In other words, a fresh ground was raised by the respondents in the present matter. Accordingly, the petitioner filed an additional affidavit dated 28th July 2021 stating therein that the averment made by the respondents that the petitioner had obtained less marks than the last candidate of his category/State/area inter alia means that the petitioner has been treated against OBC vacancy. It is also alleged by the petitioner that Page - 9 of 19 the stand of the respondents that since the marks (45.33123) as obtained by the petitioner is lower than the marks of the last selected OBC candidate the petitioner had incurred an additional disqualification apart from his original physical disqualification, is completely misleading and unacceptable in the eyes of law. It is further asserted that though the petitioner belongs to OBC category he had secured total 45.33123 marks whereas the cut-off mark to unreserved category was 39.98149 for Post Code A, 41.29914 for Code B, 41.82010 for Code C, 39.66236 for Code D, 39.32135 for Code E and 50.79069 for Code F. [6] The essential contention raised by the learned Assistant Solicitor General is that the petitioner had been given a "relaxation" of height as prescribed in the notice dated 21st July 2018 under Annexure-A and in Column III Physical Standard Test (PST) it was specifically prescribed that the height of the General, SC & OBC candidates (except those mentioned below) for male should be 170 cm. and under the heading of Relaxation it was stipulated that the minimum height for the candidates hailing from North Eastern States of Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura should be 162.5 cm.
Clause 11(xiv) of the notice on which Learned Assistant Solicitor General placed reliance may read as follows :
Page - 10 of 19 "(xiv) SC, ST, OBC and ExS candidate who qualifies on the basis of relaxed standards viz age limit, height and chest measurement, experience or qualifications, permitted number of chances, extended zone of consideration larger than what is provided for general category candidate etc., irrespective of his/her merit position, such SC, ST, OBC and ExS candidates is to be counted against reserved vacancies. In so far as cases of ex-serviceman are concerned, deduction of the military service rendered from the age of ex-
servicemen is permissible against the reserved or unreserved posts and such exemption cannot be termed as relaxed standards in regard to age."
The contention raised on behalf of the respondents by the learned Assistant Solicitor General was that since the petitioner, admittedly, had a height of 167 cm. which was below 170 cm. the original prescribed height and he had been given such relaxation in terms of Clause 11(xiv), the petitioner was not selected on his own merit and was given relaxed standards for his consideration. Consequently, such a candidate could not be accommodated against the unreserved vacancies as per the position in the overall merit list and he could only be considered under the OBC category (reserved vacancies) only.
[7] Learned counsel appearing for the petitioner, on the other hand, placed reliance on the same heading i.e. Clause 11 Mode of Selection but sub-clause (xiii) which may read follows :
Page - 11 of 19 "(xiii) SC, ST, OBC and ExS candidates who are selected on their own merit without relaxed standards, along with candidates belonging to other communities, will not be accommodated against the unreserved vacancies as per their position in the overall Merit List. The reserved vacancies will be filled up separately from amongst the eligible SC, ST, OBC and ExS candidates."
Learned counsel submitted that though the petitioner did not qualify according to the prescribed height standards but met the height standards since he was a candidate from Tripura and the minimum height prescribed for such candidate was held to be 162.5 cm. This aspect could not be treated as a relaxed standard in any manner. Consequently, if Clause 11(xiii) applies to the circumstances of the present case and not Clause 11(xiv) as claimed by the respondents then in such an event, the petitioner should have first been considered on merits in the open category and thereafter, if he did not qualify then he could have been considered under the reserved category. Learned counsel for the petitioner reasserts that prescribing a lesser height requirement for people living in different parts of the country is not a relaxation per se but a standard fixed by the Government of India for considering candidates from various parts of the country due to the obvious physical and/or genetic differences that exists in the population of the nation. Stipulation of standards by itself cannot be deemed to be a relaxation and even Column III which prescribed Physical Standard Test (PST) stipulates the height in centimetres to be 170 for Page - 12 of 19 General, SC and OBC candidates but most importantly also in bracket stipulates (except those mentioned below). In other words, for the persons belonging to categories which are mentioned in the said notice who have a separate height stipulation does not make them to come to get any extra benefit except to be considered at par with all other candidates from all parts of the nation.
[8] In this respect, reliance was placed by the petitioner on a judgment rendered by Division Bench of the Delhi High Court in WP(C) 4982/2021 & CM 15269/2021 in the case of Hemant Pokhriyal Vs. Staff Selection Commission and Ors. In the said case, a similar stand on behalf of respondent-Union of India through its Additional Solicitor General has been taken insofar as the candidates from the Garhwal Region were concerned. The contentions were noted by the Hon‟ble Division Bench of the Delhi High Court in Para -13 and its views on the said subject were noted at Para - 14. It was categorically held therein that though the petitioner was an OBC candidate and has availed relaxation in measurement in the standards of height and chest which was made available to Garhwali Candidates, the contention made by the respondents that he could not be considered in unreserved category by virtue of para 11(xiv) is untenable in law as the instructions and the clarifications clearly Page - 13 of 19 state when a reserved category candidate is selected on the same standard as applicable to the General candidate then he shall not be adjusted against reserved vacancies. It is only when a candidate avails relaxations that are not otherwise available to candidates of the unreserved category then he is to be considered in his category. Reference has also been made by the Hon‟ble Delhi High Court to an Office Memorandum dated 1 st July 1998 issued by the Ministry of Personnel, PG & Pensions, Department of Personnel & Training clarifying the position.
[9] While the judgment of the Delhi High Court was cited by the learned counsel for the petitioner, the matter was adjourned and both learned counsel for the petitioner as well as learned Assistant Solicitor General were requested to ascertain as to whether the judgment of the Division Bench of the Delhi High Court in the case of Hemant Pokhrial (supra) has been challenged before the Hon‟ble Apex Court or not. Today, at the time of hearing, the learned counsel for the petitioner submitted on verification that no such challenge appears to have been made and the learned Assistant Solicitor General submits that the matter remains pending before the administrative department for implementation of the judgment.
Page - 14 of 19 [10] Insofar as the present case is concerned, the relaxation of height has been availed by the petitioner which is also available to all other candidates belonging to the North-east States. In fact, there is no specific height or chest relaxation provided for candidates of the North-east belonging to OBC category. The Hon‟ble Delhi High Court has also referred to an earlier order dated 2nd August 2021 where the Division Bench had opined that insofar as Clause 11(xiv) of the Examination Notice (supra) refers to Scheduled Castes (SC), Scheduled Tribes(ST), OBC and Ex-Servicemen candidates who have qualified on the basis of relaxed standards, the same refers to the relaxation by virtue of being SC, ST, OBC or Ex-Servicemen and not relaxation given to candidates from particular States/region inasmuch as the said relaxations are available to all candidates from that region/State, even those belonging to the unreserved category. Learned counsel for the petitioner submits that the Hon‟ble Delhi High Court, Division Bench, having held that relaxation of height given to applicants from the North-east is not a relaxation only for the petitioner who belongs to the OBC category but to all candidates who are residents of the North-eastern States and accordingly, the writ petition should be allowed.
Page - 15 of 19 [11] Learned counsel for the petitioner also placed reliance on a judgment of the Hon‟ble Supreme Court in the case of Sourav Yadav and Ors. Vs. State of Uttar Pradesh and Ors. reported in (2021) 4 SCC 542 and in particular, paragraphs 43 and 44 which may read as follows :
"43. Finally, we must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai V. Shital Amrutlal Nishar, 2020 SCC On Line Guj 2592 contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes - Female. The steps indicated by Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the concerned authorities but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs.
44. Having come to the conclusion that the Appellant No.1 and similarly situated candidates had secured more marks than the last candidates selected in „Open/General Category‟, the logical consequence must be to annul said selection and direct the authorities to do the exercise de novo in the light of conclusions Page - 16 of 19 arrived at by us. However, considering the facts that those selected candidates have actually undergone training and are presently in employment and that there are adequate number of vacancies available, we mould the relief and direct as under :-
44.1. All candidates coming from „OBC Female Category‟ who had secured more marks than 274.8928, i.e. the marks secured by the last candidate appointed in „General Category-
Female‟ must be offered employment as Constables in Uttar Pradesh Police.
44.2. Appropriate letters in that behalf shall be sent to the concerned candidates within four weeks.
44.3. If the concerned candidates exercise their option and accept the offer of employment, communications in that behalf shall be sent by the concerned candidates within two weeks. 44.4. On receipt of such acceptance, the codal and other formalities shall be completed within three weeks. 44.5. Letters of appointment shall thereafter be issued within a week and the concerned candidates shall be given appropriate postings.
44.6. For all purposes, including seniority, pay fixation and other issues, the employment of such candidates shall be reckoned from the date the appointment orders are issued. 44.7. The employment of General Category Females with cut off at 274.8928 as indicated by the State Government in its affidavits referred to in paragraphs 5 and 8 hereinabove are not to be affected in any manner merely because of this judgment."
Reliance on the same was placed to highlight the issue that even a person who may be belonging to reserved category is entitled to be Page - 17 of 19 considered under the open category or unreserved category if the marks obtained by such a candidate is higher than the marks obtained by the candidate of unreserved category.
[12] The learned Assistant Solicitor General, on the other hand, placed reliance on a judgment of the Hon‟ble Supreme Court in the case of Niravkumar Dilipbhai Makwana Vs. Gujarat Public Service Commission and Ors. reported in (2019) 7 SCC 383 and in particular, the findings of the Court arrived at in paragraphs 17, 22 and 23 thereof in order to canvas the fact that where a candidate has availed the age relaxation in the selection process as a result of belonging to a reserved category cannot thereafter seek to be accommodated in or migrated to the general category seats. There can be no two opinions on the observations and directions of the Hon‟ble Apex Court in the said judgment. Unfortunately, this judgment has no relevance vis-a-vis the issue that is raised in the present case. In the present case, the petitioner though an OBC candidate was originally disqualified and found unfit due to nevus on his right abdomen. The opinion of the doctors of the Review Medical Board who conducted the examination is exactly to the contrary and they found that nevus not to be in any manner interfered with the work which the petitioner may be assigned and consequently, held the petitioner to be physically fit.
Page - 18 of 19 [13] Insofar as the present case is concerned, the only issue that arises for our consideration is that when the respondents have stipulated the minimum height of a candidate hailing from the north-east to be 162.5 cm whereas the original stipulation was 170 cm whether that itself amounts to a relaxation or a benefit. As seen from the judgment of the Delhi High Court as in the case of Hemant Pokhrial (supra), the same cannot be treated as a relaxation to debar the petitioner from being considered under the open category simply because this relaxation is not meant only for OBC candidates and extends to all candidates who may apply under any category or all categories who are residents of the north-east. As noted hereinabove, the object of stipulating varied standards of height, is clearly on account of the variances that exist in our nation on account of physical and or genetic differences amongst various communities which constitutes our nation. In other words, providing different height criteria for people from different areas of the nation and/or background essentially is an affirmative action by the Union of India to put all candidates from all parts of the country at par for their consideration on merit. So, there is absolutely no relaxation per se granted to the petitioner and therefore, sub-clause
(xiv) of Clause 11 of the Annexure-A has no applicability in the present case and the case of the petitioner is to be considered under sub-clause
(xiii).
Page - 19 of 19 [14] Accordingly, the writ petition is allowed. The petitioner has been found physically fit for being considered for appointment by the Review Medical Board and this Court finds that the "purported relaxation" granted to candidates from the north-east amongst others is not a relaxation of such a nature which would deprive them from being considered under the open category as stipulated under Clause 11(xiii) and since this Court had earlier directed non filling of one post for consideration of the petitioner, the said post shall be given to the petitioner forthwith preferably within a period of 4(four) weeks from today.
Petition is allowed. Pending application(s), if any, also stands disposed of.
( INDRAJIT MAHANTY, CJ ) Sukhendu