Orissa High Court
Suchitra Sethi vs Union Of India And Others on 17 August, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 16120 OF 2016
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR
Suchitra Sethi ......... Petitioner
-Versus-
Union of India & others ......... Opp. Parties
For petitioner : M/s. U.C. Mohanty, T. Sahoo,
B.K. Swain and P.B. Mohapatra,
Advocates
For opp. parties : Ms. S.B. Das,
Central Government Counsel
(O.Ps.1 to 4)
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PRESENT
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of hearing : 03.08.2017 : Date of judgment:17.08.2017
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DR. B.R. SARANGI, J. The Staff Selection Commission, Government of
India released a notification on 24.01.2015 to fill up 62390 GD
Constable vacancies (both male and female) in different
categories, i.e., SC, ST, OBC and Un-Reserved in Indian Armed
Forces like BSF, CISF, CRPF/CAPF, SSB, ITBP, Assam Rifles,
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NIA, SSF. As per the notification, the intending candidates,
having minimum qualification of 10th class or its equivalent from
the recognized Board with age limit from 18 to 23 years, were
to submit their applications through online from 24.01.2015 to
23.02.2015. The recruitment test was to be done by conducting written examination, medical test and interview. The selected candidates were to get salary of Rs.5200-20200/- with Grade Pay of Rs.2000/-. Pursuant to such advertisement, the petitioner, being an SC category candidate with sub-caste "Dhoba", submitted her application through online. After entertaining her application, she was allotted Roll No.14604022686 with examination centre at ER-Bhubaneswar (4604) and State Code Odisha-26. As per schedule of recruitment test, the petitioner appeared at the written examination and was qualified. Thereafter, the Physical Efficiency Test (PET) and Physical Standard Test (PST) were held wherein she was qualified by securing marks more than the requirement. So far as chest test is concerned, there was no such requirement prescribed for female candidates as revealed from PET and PST test.
After qualifying such test, the petitioner was directed to appear for medical fitness test on 11.05.2016, wherein she 3 was declared medically unfit on account of Extensive Tinea Versicolor and underdeveloped breasts (Tanner Stage-III). She preferred appeal in prescribed form, i.e., Annexure-IV, which is annexed to the writ petition as Annexure-3, before Deputy Inspector General of Police, Central Reserve Police Force (CRPF), Group Centre, Bhubaneswar. Then the petitioner, having not satisfied with the finding given by the Medical Officer, filed an application in prescribed form, i.e., Annexure-V, which is annexed as Annexure-4 to the writ application, for further medical examination before the Medical Board at City Hospital, Cuttack by a panel of doctors. Pursuant thereto, she was examined on 21.05.2016 by the Medical Board and the Board gave a certificate that Tinea versicolor and underdeveloped breasts is not a case of Turner's syndrome and pelvic USG uterus and ovaries is normal, the petitioner is having regular menstrual cycles and her breast will develop in due course of time. In view of such report, the petitioner could have been declared as medically fit. Instead of doing so, the petitioner was directed again to appear for review medical test on 07.09.2016 at the CRPF, Group Centre, Bhubaneswar. Accordingly, she appeared and was clinically examined whereupon it was opined that the petitioner had no evidence of 4 Tinea versicolor infection, but she had underdeveloped breast (Tanner Stage-III), for which she was declared unfit. As the petitioner was not issued with appointment letter, she has approached this Court by filing the instant writ application.
2. Mr. U.C. Mohanty, learned counsel for the petitioner strenuously urged before this Court that the petitioner, having qualified in the scheme of examination as prescribed in the notice dated 24.01.2015, i.e., written test, PET and PST tests, should not have been declared unfit on a flimsy ground, which amounts to arbitrary and unreasonable exercise of power by the authority concerned. As such, notice of recruitment clearly indicated that no chest measurement was necessary for the female candidates. It is further contended that the reason for rejection has not been indicated under Clause-6, i.e., General grounds for rejection, of Uniform Guidelines for Medical Examination Test (MET) for Recruitment in CAPFs, NSG & AR. Once this ground is set out in the general grounds for rejection, petitioner having not come under this guideline, non- consideration of her candidature cannot sustain in the eye of law. It is also contended that, as the notice for recruitment was issued on 24.01.2015, the action so taken by issuing subsequent revised guideline dated 20.05.2015, cannot sustain 5 in the eye of law. As such, necessary appointment order should be issued in favour of the petitioner on the basis of the medical report submitted by the Medical Board of the City Hospital, Cuttack. To substantiate his contention, he has relied upon the judgments in Secretary, A.P. Public Service Commission v. B. Swapna and others, 2005(2) SUPREME 615, Mrs. Madhumita Das v. State of Orissa, 100 (2005) CLT 465 and Dr. Smrutisudha Pattnaik v. Acharya Harihar Regional Cancer Centre, Cuttack & ors, 2017(I) ILR-Cut-1077.
3. Ms. S.B. Das, learned Central Government Counsel contended that the petitioner was declared medically unfit by the Review Medical Board pursuant to revised uniform guidelines for medical examination for recruitment of Gazetted Officers (GOs) and Non-Gazetted Officers (NGOs) in CAPFs & AR issued by the Ministry of Home Affairs, Government of India vide letter dated 20.05.2015. Therefore, no illegality or irregularity has been committed by the authority in declaring the petitioner unfit. Consequentially, the petitioner is not entitled to get employment pursuant to notice dated 24.01.2015.
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4. Mr. U.C. Mohanty, learned counsel for the petitioner stated that though he has received copy of the counter affidavit, he does not wish to file any rejoinder affidavit. Therefore, this Court proceeded for hearing on the basis of materials available on record and, having heard Mr. U.C. Mohanty, learned counsel for the petitioner and Ms. S.B. Das, learned Central Government Counsel, disposed of this matter with their consent at the stage of admission.
5. The undisputed fact is that the petitioner was the applicant for the post of Constable (GD) pursuant to notice dated 24.01.2015 issued by the Staff Selection Commission. She was allotted with Roll No. 14604022686 and was called to appear at the Physical Efficiency Test (PET) and Physical Standard Test (PST) at Bhubaneswar Centre on 27.05.2015 wherein she was declared qualified. Then, she appeared in the written examination on 04.10.2015 and was found qualified. On being successful in the PET/PST, as well as in the written examination, the petitioner was called for Departmental Medical Examination held on 11.05.2016. She appeared before the Medical Examination Board to assess her physical and medical fitness as prescribed in the eligibility conditions. But as per the Revised Uniform Guidelines for Medical Examination for 7 Recruitment of Gazetted Officers (GOs) and Non-Gazetted Officers (NGOs) in CAPFs & AR issued by the Ministry of Home Affairs vide letter No.20.05.2015, she was declared medically unfit due to (1) extensive tinea versicolor and (2) underdeveloped breasts (Tanner stage-III).
6. As per the instruction issued by DIG (Recruitment) Directorate General CRPF, New Delhi vide letter dated 19.04.2016, the result of the candidates appeared in the medical examination was to be communicated to them on the spot by the medical board and the names and signatures of the candidates at appropriate column were to be obtained at the medical report for the purpose. The petitioner was issued Form No.1 CAPFs-Constable (GD) Memorandum Unfit duly signed by the Medical Officer on 13.05.2016. Having not satisfied with the finding of the Medical Officer, she submitted application before the appropriate authority, i.e., DIG, Central Reserve Police Force (CRPF), Group Centre, Bhubaneswar for review of medical examination, as would be evident from Annexure-3, in the Form No.2 CAPFs Constable (GD)-2015 along with demand draft for Rs.25/-.
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7. The petitioner, as would be evident from Annexure-4, appeared before the Medical Board at City Hospital, Cuttack on 21.05.2016 and in the prescribed Form-3 CAPF-Constable (GD) 2015 a panel of doctors granted medical certificate to the effect that on the score of (1) extensive tinea versicolor and (ii) underdeveloped breasts (Tanner Stage-III) pointed out by the Group Centre, Hospital doctor, the petitioner was examined and found that "the tinea versicolor is not a case of Turner's syndrome on her pelvic USG uterus and ovaries to be normal, she is having regular menstrual cycles and her breast will develop in due course of time." Consequentially, the Board declared the petitioner as fit. But for the reasons best known to the authority, the petitioner was again sent for review by the medical board of the department, which stated that she was clinically examined and there was no evidence of Tinea versicolor infection but underdeveloped breast is present and due to underdeveloped breast (Tanner Stage-III) the petitioner was declared unfit. It is stated that the decision of the review medical board would be final and no appeal would be entertained against the said finding. As a result, the petitioner is deprived of her job though she is otherwise eligible for the post. 9
8. As it appears from the counter affidavit, the recruitment notice was issued on 24.01.2015, but a revised Uniform Guidelines for Medical Examination Test (MET) For Recruitment in CAPFs, NSG & AR was issued on 20.05.2015, i.e., four months after the publication of notice. By issuing such uniform revised guidelines, the authorities have changed the norms and conditions prescribed in the advertisement issued on 24.01.2015 which is also not permissible. Under Clause-6 of the Uniform Guidelines "General grounds of rejection" has been prescribed. On perusal of the said general grounds of rejection including sub-clause-1 to 29 nowhere it is indicated that the candidate would be declared unfit due to underdeveloped breast (Tanner Stage-III). However, in the note it has been specifically stated as follows:
"NOTE-In case of rejection recruitment medical officer will fully just writing below cause of rejection in recruitment form, otherwise he will be responsible."
The cause of rejection declaring the petitioner unfit has not been contemplated in any of the sub-clauses of Clause-6. The entire action of the authority is thus contrary to the provisions of law. The specific contention of the petitioner is that even if the authorities have acted on the guidelines prevalent as on 24.01.2015, particularly in view of sub-clauses 1 to 29 of Clause-6 and the note mentioned therein, since the reason for 10 rejection has not been incorporated under Clause-6, the petitioner could not have been declared unfit medically. Any action taken pursuant to subsequent guideline dated 20.05.2015 is forbidden in law, as it had not seen the light of the day by the time the recruitment notice was issued on 24.01.2015.
9. In Rakhi Ray v. High Court of Delhi (2010) 2 SCC 637: AIR 2010 SC 932, the apex Court held that the process of selection begins with the issuance of advertisement and ends with the filling up of notified vacancies.
10. In A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra, (1990) 2 SCC 669, the apex Court held that the process consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment.
11. In A.A. Calton v. The Director of Education, AIR 1983 SC 1143, the apex Court held that law as it stood at the point of time when the process of selection commenced will be the law according to which the selection has to be completed. 11 Similar view has also been taken by the apex Court in P. Mahendran v. State of Karnataka, AIR 1990 SC 405.
12. In view of the law discussed above, there is no dispute that after the advertisement was issued on 24.01.2015, the Uniform Revised Guidelines was issued on 20.05.2015, which does not form part of the notification issued for recruitment in CAPFs, NSG & AR. As such, the action taken pursuant to the said Uniform Revised Guidelines, as has been admitted in paragraph-3 of the counter affidavit that on the basis of the revised guidelines for medical examination for recruitment of Gazetted Officers (GOs) and Non-Gazetted Officers (NGOs) in CAPFs & AR issued by the Ministry of Home Affairs vide letter dated 20.05.2015 the petitioner was declared medically unfit by the Medical Board, cannot sustain in the eye of law. Furthermore, the action taken on the basis of subsequent Uniform Revised Guidelines, without bringing the same to the notice of the candidates, is arbitrary, unreasonable and hit by the principle "once game is played the rule of game cannot be changed in the midst".
13. Coming to the position of law settled in B. Swapna (supra), that is a case where Andhra Pradesh Public Service 12 Commission though initially had advertised for recruitment to 8 posts of Asst. Public Relation Officer, subsequently 7 more vacancies were advertised, as a result of which selection made for 15 vacancies was finalized on 2.7.1996. Not only that, during the currency of the wait list, the competent authority again notified 14 more vacancies on 14.04.1997 to be filled up by the candidates from the wait list. In that case, the apex Court held that there were two principles in service laws, which were indisputable; firstly, there could not have been appointment beyond the advertised number; and secondly, the norms of selection could not have been altered after the selection process had started. Paragraph 16 of the judgment, being relevant for the purpose of the case, is reproduced hereunder:
"The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by Learned Counsel for the applicant-respondent No.1 it was unamended rule, which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criteria e.g., minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If the Rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only."13
From the above mentioned facts and circumstances, as well as the law laid down by the apex Court, this Court has come to the conclusion that once selection process was started, the norms fixed in the advertisement could not have been changed and if they were liable to be changed then the same should have been published in the like manner in which initial advertisement was published. Non-publication of the changed norms after starting of the selection process violates Article 16 of the Constitution and thus is not sustainable in the eye of law.
14. Relying upon the judgment of the apex Court, referred to above, this court also in the matter of recruitment of Ad hoc Additional District Judges under the Orissa Judicial Service (Special Scheme) Rules, 2001 in pursuance of the advertisement issued by the High Court of Judicature, Orissa, Cuttack by advertisement no.1 of 2003 has taken a similar view in Mrs. Madhumita Das v. State of Orissa, 100(2005) CLT
465. Similar view has also been taken by this Court in Dr. Smrutisudha Pattnaik (supra).
15. In view of the factual and legal analysis made above, this Court is of the considered view that the review medical examination report Annexure-6, whereby the petitioner has 14 been declared unfit on the basis of the Uniform Revised Guidelines for Medical Examination Test (MET) for Recruitment in CAPFs, NSG & AR dated 20.05.2015 which was issued four months after the notice of recruitment dated 24.01.2015, cannot sustain in the eye of law. Accordingly, the same is hereby set aside and the authorities concerned are directed to act upon the medical certificate issued by the Medical Board, City Hospital, Cuttack [Annexure-V, Form No.3 CAPFs-Constable (GD) 2005] dated 21.05.2016 in Annexure-4 and consequentially issue necessary appointment order to the petitioner, by declaring her medically fit to hold the post of Constable GD in Assam Rifles.
16. The writ petition stands allowed. No order as to cost.
Sd/-
(DR. B.R. SARANGI) JUDGE The High Court of Orissa, Cuttack The 17th August, 2017/Alok True Copy P.A.