Jammu & Kashmir High Court
Narinder Singh vs Director General Of Crpf And Others. on 10 July, 2018
Equivalent citations: AIRONLINE 2018 J AND K 27
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.2147/2012
IA No.3302/2012
Date of order:10.07.2018
Narinder Singh v. Director General of CRPF and others.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Petitioner(s) : Mrs. Surinder Kour, Sr. Advocate with
Ms. Manpreet Kour, Advocate.
For the Respondent(s) : Mrs. Sindhu Sharma, ASGI.
i/ Whether to be reported in : Yes
Press/Media
ii/ Whether to be reported in : Yes
Digest/Journal
1. Pursuant to Frontier Headquarter, BSF, New Delhi's letter dated 31.01.2012, a special recruitment drive was carried out in the State of J&K to supply the unfilled vacancies of Constable (GD) in BSF for the year 2011-12. On 27.02.2012, an advertisement notification in this regard was issued and the candidates who were willing and fulfill the prescribed physical and medical standards were invited to appear at the PST/PET Centres designated in their respective districts on 26.03.2012 and 28.03.2012. The petitioner appeared before the Regional Selection Board at BSF Camp Painthee, Samba and sought recruitment to the post of Constable (GD) under OBC category. Physical Standard Test/Physical Efficiency Test was conducted in which he qualified. The petitioner, therefore, became eligible to appear in the next event i.e. written examination. The petitioner qualified the written test also and was, therefore, called to appear for medical examination.
2. On 17.04.2012, the medical examination of the petitioner was conducted and he was declared unfit due to "Gynaecomastia left". The petitioner was, SWP No2147/2012 Page 1 of 7 however, given an opportunity to appeal against the finding of the medical examination for which he was intimated in writing. The petitioner seized the opportunity and submitted an appeal for review medical examination. Accordingly, review medical examination of the petitioner was conducted at FHQ, BSF, Paloura Camp, Jammu on 26.07.2012. During the review medical examination, the petitioner was again found medically unfit due to "Gynaecomastia left more than right". It is stated that the result of the review medical examination conducted by the respondents was not conveyed to the petitioner which constrained the petitioner to file SWP No.1740/2012 seeking, inter alia, a direction to the respondents to declare the result of the review medical examination and consider the petitioner for appointment as Constable (GD) in BSF. The aforesaid writ petition was disposed of on 27.08.2012 with a direction to the respondents to declare the result of review medical board within two weeks. In compliance, the respondent No.3 communicated the result of the review medical examination of the petitioner to the petitioner. Aggrieved, the petitioner has filed the instant writ petition.
3. Having heard learned counsel for the parties and perused the record, I am satisfied that the respondents had not treated the petitioner fairly and have failed to conduct review medical examination of the petitioner in accordance with the guidelines approved by the Ministry of Home Affairs for conducting the medical examination tests for recruitment of GOs and NGOs in the Central Armed Police Forces (CAPFS) and Assam Riffles (AR). Needless to say that the BSF is amongst the Central Armed Police Forces of the Union of India.
4. For appreciating the grievance projected by the petitioner in this petition, it would be necessary to first refer to the rule position governing the medical examination for recruitment of GOs and NGOs including Constable in the BSF, as was obtaining in the year 2012 when the process for recruitment in question was set in motion. Admittedly, in the year 2012 the medical examination for SWP No2147/2012 Page 2 of 7 recruitment of Constable (GD) in CAPFS and AR including the BSF was regulated by Uniform Guidelines for the purposes issued by the Additional Director General (Medical), CAPFs and AR, Ministry of Home Affairs, Govt. of India, New Delhi. Guideline No.12 which is relevant is reproduced hereunder:-
"12. Steps 1 (Group Test) General Examination The candidates examined at a glance presenting with any of the following disease/disability will be rejected:-
(a) Any congenital malformation or defects.
(b) Any obvious squint or other abnormalities of eyes.
(c) Any glandular swelling.
(d) Pronounced Stammering.
(e) Deformity of Chest.
(f) Any obvious skin lesions as referred to at paragraph 24 to 29
below.
(g) Umbilical Hernia.
(h) Gynaecomastia.
(i) Gross Spinal Deformity.
(j) Any obvious physical deformity or disease. The level of
intelligence is checked during the verbal discussion with recruit."
5. From a bare reading of the aforesaid guidelines it is apparent that a candidate suffering from Gyaecomastia is required to be outrightly rejected even by examination at a glance. There is, however, a provision for filing appeal for medical re-examination. Obviously, the petitioner exercised that right and his appeal was entertained and consequently, review medical examination of the petitioner was conducted. So far as guidelines for review medical examination are concerned, those are also part of Uniform Guidelines aforementioned issued in the year 2011. The relevant portions of the guidelines for review medical boards which are relevant for deciding the controversy in this petition need to be noticed and are reproduced hereunder:-
"3. Few examples are being cited for the guidance of Review Medical Board.
a) In any cardiac case like vavular defects ECG/Echocardiogram must be carried out SWP No2147/2012 Page 3 of 7
b) In cases of suspected lesions of chest like Hilar Lymphadenitis, calcified spots, Koch's infiltrations any mass detected in X-Ray chest etc CT Chest should be carried out.
c) For vascular defects like Varicose vein, vascular malformations etc
Colour Doppler should be carried out
d) For any keratotomy/Lasik Surgery, slit lamp Opthalmoscopy and
Corneal Topography should be carried out
e) For squint Synoptophore test should be conducted
f) For colour blindness Edridge lathern should be used and decision
should be given judiciously giving full details of tests carried out both on Ishihara chart and Edridge lanthern
g) For candidates who have been rejected on the ground of hypertension/tachycardia should be admitted/hospitalized by the Board before giving their final opinion regarding the candidate's fitness or otherwise. The hospitalization report should indicate whether the rise in blood pressure is of transient nature due to excitement etc. or whether it is due to any organic disease. In all such cases X-Ray and electro-cardiographic examinations of heart and blood examinations like cholesterol/lipid profile, S. creatinine etc, tests should also be carried out.
h) For any suspected case of CAD, TMT test should be conducted
i) Any tremor in hands or other parts of body thyrotoxicosis should be ruled out and neurologist's opinion should be taken.
j) For suspected Diabetes Mellitus cases GGT and glycosylated Hb. Test should be carried out
k) For knock knee, bow leg, cubitus valgus and varus deformities, X-Ray plate with findings should be attached.
l) For any type of deafness, Audiometry should be carried out.
These are a few examples just to reiterate and bring home the point that in review medical examination candidates should not be rejected on clinical findings only. Any decision on rejection must be taken with valid clinical findings fully justified and supported by corroboratory investigation reports and if needed opinion of specialists/super specialists of Govt. Hospitals/Medical Colleges/Govt. approved private medical Centres should be taken Obviously when such confirmatory tests are required to be carried out routinely, time constrain should not be there and for not making review medical examination time bound, all concerned may be informed otherwise proper decision cannot be taken in such cases." (emphasis supplied by me)
6. From a perusal of the guidelines for review medical boards, it is abundantly clear that "in review medical examination, the candidate cannot be rejected on clinical findings only. Any decision on rejection ought to be taken with valid clinical findings fully justified and supported by corroboratory investigation reports and if needed opinion of specialists/super specialists of Govt. Hospitals/Medical Colleges/Govt. approved medical Centres should be SWP No2147/2012 Page 4 of 7 taken." In the backdrop of aforesaid legal position pertaining to the conduct of initial medical and review medical boards, it is to be seen whether the procedure laid down in the aforesaid guidelines was followed by the respondents while conducting the review medical board of the petitioner. After the petitioner was rejected in the initial medical board for being detected from suffering "Gynaecomastia", the petitioner got himself examined by a medical expert at the District Hospital, Samba who after examining the petitioner declared him medically fit for the post of Constable (GD) in CAPFs. The findings of the doctor, as recorded by him in the medical fitness certificate issued by him are in the following manner:-
"Pt. is having physiological gynaecomastia of adolescence which is normal finding in this age gp. And no contra indication for any job."
7. With the support of aforesaid medical fitness certificate the petitioner appealed for review medical board. The appeal of the petitioner was accepted and he was subjected to review medical examination by the respondents. The review medical board, however, without subjecting the petitioner to any investigation, conducting his sonography etc. rejected the candidature of the petitioner on the basis of clinical findings only. As is evident from the result of review medical examination which is made part of objections by the respondents as Annexure-R-5, the review medical board returned its findings in the following manner:-
"Gynaecomastia left more than right"
Accordingly, the petitioner was declared unfit even in the review medical examination. No reasons have been given by the review medical board to differ with the certificate of fitness granted by the medical officer in the Government Hospital, Samba and opinion rendered by him therein. As a matter of fact the aforesaid opinion has not been taken note of by the review medical board.
SWP No2147/2012 Page 5 of 78. Mrs. Sindhu Sharma, learned ASGI, however, was provided opportunity to produce any record contemporaneously maintained to support the findings of the review medical board. In response, she fairly stated that there is no such record maintained by the review medical board which would indicate that the petitioner was subjected to any investigation or any ultrasound examination was conducted to find out as to whether the disease- Gynaecomastia found in the medical examination is due to fatty tissue or breast tissue. As has been provided in the subsequent guidelines issued in the year 2015, the candidate suffering from Gynaecomastia ought to be rejected only if Gynaecomastia is found to be due to breast tissue. I am aware that the aforesaid guidelines which were promulgated in the year 2015 are not applicable but the guidelines of 2011 also specifically provide that decision to reject a candidate in review medical board should not be taken only on the basis of clinical findings, unless these are fully justified and supported by the corroboratory investigation reports. Furthermore, the opinion of the specialist of a Government Hospital, if on record also required to be taken into consideration. The decision of the review medical board, in the facts and circumstances explained above, is cryptic, non-speaking and in violation of the guidelines issued for the purposes.
9. In view of the aforesaid discussion, the petition succeeds. Accordingly, the writ petition is allowed and the order No.112/01/2012-Estt-IV/BSF/19593- 98 dated 08.09.2012 whereby the petitioner was declared unfit in the review medical board for the post of Constable (GD) BSF due to Gynaecomastia is quashed and a direction is issued to the respondents to reconvene the review medical board and examine the petitioner again strictly in accordance with the guidelines issued by the Government of India, Ministry of Home Affairs for conducting the review medical board/review medical examinations of the candidates for recruitment to different posts including Constable (GD) in BSF which were in force when the process for recruitment in question was set in SWP No2147/2012 Page 6 of 7 motion by the respondents. Let the review medical examination of the petitioner be conducted afresh within a period of four weeks from the date the certified copy of this order is made available to the respondents. It is made clear that in case, the petitioner is found fit in the fresh review medical board, the petitioner shall be given appointment as Constable (GD) without any further loss of time.
(Sanjeev Kumar) Judge Jammu 10.07.2018 Vinod.
SWP No2147/2012 Page 7 of 7