Central Administrative Tribunal - Delhi
Hansraj vs Staff Selection Commission on 10 May, 2024
1
OA No.1435/24
Item No.85
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.1435/2024
This the 10thday of May, 2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member(A)
Hansraj, Recruit Constable (Ex.) in Delhi Police
Roll No.2201103519, Aged about 21 years
S/o Sh. Chaina Ram Bawari
R/o VPO: Koliya
Teh: Didwana, Rajasthan-341305
...Applicant
(By Advocates: Ms. Ridhi Dua, Mr. Puneet Raghav
Mr. Dev Priya Tomar)
Versus
1. Staff Selection Commission
Through its Chairman
CGO Complex, Lodhi Road
New Delhi-110003.
2. Delhi Police through Commissioner of Police
PHQ, Jai Singh Road
New Delhi-110001.
...Respondents
(By Advocate: Mr. Amit Yadav)
O R D E R (ORAL)
Hon'ble Mr. Manish Garg, Member (J):
At the outset, learned counsel for the applicant states that the applicant is aggrieved by the result of 2 OA No.1435/24 Item No.85 the Review Medical Examination conducted by the respondents for recruitment to the post of Constable (Executive) Male and Female in Delhi Police Examination 2023, wherein the applicant has been declared medically unfit on the ground of "Cubital Valgus Right". He got himself re-examined at another Govt. Hospital where he was declared medically fit. The medical certificate to that effect has also been placed on record.
2. Learned counsel for the applicant further states that the said medical ground on which the applicant has been declared unfit has neither been notified nor there is any finding that it is an impediment for functional performance of the duty as a Constable.
She relies upon the Order passed today i.e. 10.05.2024 in OA No.519/2024 (Teekaram Singh Meena vs. SSC and Ors.) which reads as under:-
"5. Learned counsel for the applicant draws reference to the medical placed at page No.18 of the OA. She contends that in terms of the Order passed in OA No.823/2024, there has been an observation made by this Tribunal that the disability has to be categorized in terms of the guidelines or rules/instructions. The categorization has to be "Fit/Unfit or Temporarily Unfit". The same has not been done in the present case.
6. She further contends that there is no finding in the medical opinion qua the medical 3 OA No.1435/24 Item No.85 standard already prescribed and notified in terms of advertisement. Therefore, on this count the medical report should fail and the applicant should be re-medically examined.
7. She relies upon the medical opinion obtained from Govt. Hospital Safdarjung, New Delhi, which reads as under:-
"Very small Umbilical defect of Less Than 5 mm, which does not require any surgical treatment."
and the applicant is "considered to be fit from surgery side"
Therefore, it cannot be regarded as deformity or any impediment in performing the functions in Delhi Police.
8. Learned counsel for the applicant further relies upon the following decisions on the issue of medical disease i.e. Hernia reported in:-
Jatinder Singh v. Union of India and Ors. CWP No.10998/2022(O&M) dated 12.07.2023 wherein the Punjab and Haryana High Court held as under:-
"5. The petitioner was suffering from Umbilical Hernia and got operated on 04.02.2022 i.e. prior to examination by Review Medical Board.
The Review Medical Board has not considered the fact that petitioner has already got operated Hernia, thus, respondent was bound to consider case of the petitioner for appointment as driver."
9. In Dharamvir Singh v. the State of Uttar Pradesh and Anr. in Writ Petition(C) No(s).444/2019 dated 19.07.2019, the Hon'ble Apex Court held as under:-
"It is true that the petitioner was examined twice over and was found to be medically unfit. However, considering the nature of ailment and medical condition, the issue appears to be remediable and not of any permanent character.
We, therefore, allow this writ petition and direct the respondent-authorities to constitute a fresh Board of Medical Professionals who may undertake medical examination of the petitioner afresh. Let a Medical Board of three medical professionals having expertise in the field be 4 OA No.1435/24 Item No.85 constituted by the Director of K.G.M.U. Lucknow.
The medical board upon being constitute, may send an appropriate communication to the petitioner within 7 days, notice to appear before the Medical Board. The decision taken by the Medical Board as regards the medical condition and fitness of the petitioner shall be binding on either side."
10. She further contends that even in the counter affidavit there is an apparent bias as the medical re-examination was conducted at the same hospital as is evident from para 10, page 8 of the counter affidavit.
11. Learned counsel further draws attention to the OM dated 16.01.2024 placed at Annexure R-3 of the counter affidavit wherein the candidates who were approximately ten thousand in number, the following direction was mentioned:-
"The medical examination would require to be completed within a week's time"
12. Besides taking the legal objections already taken in OA No.823/2024, the standing counsel for Delhi Police further urge this Tribunal to also look into the Order dated 22.04.2024 passed in Deepak Yadav vs. Staff Selection Commission in OA No.597/2024.
13. Much emphasis is placed on the Order passed by this Tribunal in Abhishek Khandelwal vs. UOI in OA No.1102/2022, wherein the following has been observed:-
"21. The Notification with regard to Rules for Civil Services Examination to be held by the UPSC in 2020 dated 12.02.2020 clearly provides that:
"11. The decision of the Commission as to the eligibility or otherwise of a candidate for admission to the examination shall be final. The candidates applying for the examination should ensure that they fulfil all the eligibility conditions for admission to the Examination. Their admission at all the stages of examination for which they are admitted by the Commission viz. Preliminary Examination, Main (Written) Examination and interview Test will be purely provisional, subject to their 5 OA No.1435/24 Item No.85 satisfying the prescribed eligibility conditions. If on verification at any time before or after the Preliminary Examination, Main (Written) Examination and interview Test, it is found that they do not fulfil any of the eligibility conditions, their candidature for the examination will be cancelled by the Commission."
22. In a catena of judgments, the law has been well settled that recruitment to Public Services should be held strictly in accordance with the advertisement and the Recruitment Rules. The Hon'ble Supreme Court in Yogesh Kumar v. Government of NCT of Delhi, (2003) 3 SCC 548 has clearly held that recruitment to Public Services has to be held strictly in accordance with advertisement, as the deviation from the Rules allows entry of ineligible persons.
23. XXX XXX XXXX
24. In Bedanga Talukdar v. Saifudaullah Khan & others (2011) 12 SCC 85, the Hon'ble Supreme Court made the following observations:
"29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India."6 OA No.1435/24
Item No.85 "32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of respondent 1 on the basis of identity card submitted after the selection process was over, with the publication of the select list.
33. In view of the above, the appeals are allowed and the impugned judgment and order dated 4-3-2010 passed in W.P.(C) No.950 of 2010 and the impugned judgment and order dated 2-07-2010 passed in W.P.(C) No.3382 of 2010 of the High Court are set aside."
14. In furtherance of his contentions, learned counsel for the respondents has relied upon the following judgments:-
(i) Sh. Rajveer Singh Vs UPSC and Anr. O.A No.224/ 2014;
(ii) Vidushi Gupta Vs Armed Forces Medical College W.P.(C) No.4521/2012
15. He states that the present OA is not maintainable as the applicant did not follow the prescribed instructions on the subject which read as under:-
"(3) Re-examination only in case of possible error of Judgement It has been decided that there should be no right of appeal from the findings of a Civil Surgeon or an 'authorised medical attendant, but that, if Government are satisfied on the evidence - placed'before them by'the candidate concerned of the possibility of an error of judgment in the decision of the Civil Surgeon or the authorised medical attendant, it will be 'open to them to allow re-examination by 7 Item No. 75/C-4 OA 597/2024 another Civil Surgeon or a specialist or by a Medical Board, as may be considered necessary. The fees for such examination, if any, will be paid by the candidate concerned. [M.H. OM No. 7 OA No.1435/24 Item No.85 F.7(1)-27/51 M-I1 dated the 18th January, 1952 and M.H.A. Endt. No. 38/5/52- Ests, dated the 1st February, 1962.1 (4) -Evidence regarding -possible error of judgment must refer to original certificate With reference to the instructions contained in Order
-(3) above, it has been decided that if any medical certificate is produced by a candidate or Central Government servant as a piece of evidence about the' possibility of an error of judgment in the decision of Medical Board/Civil Surgeon or other medical officer who had examined him in the first instance, the certificate will not be taken into consideration unless it contains a note by the medical practitioner concerned to the effect - that it has been given in full knowledge of the fact that the candidate has already been rejected as unfit for service by a Medical Board, a Civil. Surgeon or other medical officer. [M.H. OM No. F.7(1)-
6/53, M-I1 dated the 27th March, 1953.]
16. Since the applicant while obtaining a medical certificate from a civil hospital did not even inform the medical practitioner that he was a candidate in Delhi Police and has already been declared unfit. It is settled Law that once it is prescribed that something is to be done in a particular manner, then it has to be done in that manner and in no other manner. In support of his contention, he relies upon the following judgments:-
(i) Sri Satya Sai University of Technology and Medical Sciences Sehore vs. Union of India and Ors.(14.08.2023-DELHC): MANU/DE/5236/2023
(ii) State of U.P Vs Rahul, Manu/UP/0197/2016
(iii) Mohan Kumar Gupta Vs State of U.P., C.M.W.P No.15502/2019, Manu/UP/4750/2019
17. He lays much stress on the fact that it was a pre-requisite that if the applicant was suffering from any disease, it was incumbent upon him to disclose to such medical practitioner that his case for appointment in the armed force has earlier been rejected on the ground of medical unfitness. The doctor who has given the certificate was not even aware that the applicant is a candidate for Delhi Police recruitment process.
18. He contends that in Sri Satya Sai University of Technology and Medical Sciences Sehore v. Union of India and Ors.
8 OA No.1435/24Item No.85 WP(C) No.9662/2023 and CM Appl. 370/2023, the Hon'ble High Court has categorically held that once it is prescribed that something is to be done in a particular manner, then it has to be done in that manner and in no other manner.
19. Further, in Vijender Singh v.
Commissioner of Police in WP(C) No.3830/2019, the Hon'ble High Court held as under:-
"7. The submission of Mr. Zoheb Hossain is that the petitioner is seeking an appointment as a Constable in Delhi Police and given the nature of duties the petitioner is required to be fit in all respects. Since the deformity, as opined by the medical board shall affect the discharge of duties by the petitioner as a Constable in Delhi Police, the action of the Delhi Police in cancelling the offer of appointment to the petitioner is justified. He has also relied upon the judgment of this Court in case of K.M. Priyanka vs. Union of India & Ors., 2020 SCC OnLine Del 1851, wherein the Court was concerned with the appointment of a Constable GD in Central Armed Police Forces and the petitioner therein was also suffering from an identical deformity of„Cubitus Valgus‟ with an angle of less than 20 degrees i.e. 18 degrees, but still the Division Bench of this Court has not interfered with the decision of the respondents therein to declare the petitioner unfit for appointment in the Central Reserve Police Force. He states that in view of the decision of this Court with regard to an identical deformity, the petitioner's appointment being also in a police force, i.e., Delhi Police, the impugned action of the Delhi Police cannot be faulted.
8. This Court is in agreement with the submissions made by Mr. Hossain, when two medical boards have found that the petitioner unfit, then the Court cannot sit in an appeal over the decision of such expert bodies. The appointment being in Delhi Police, surely, the requirement of medical fitness would be of higher degree, as the nature of duties amongst many, including maintenance of law and order; including use of fire arms. The issue with regard to fitness of a person with identical deformity has been settled by a Coordinate Bench of this Court in K. M. Priyanka (supra), wherein in paragraph 8, this Court has held as under:-
"We have on several occasions observed that the standard of physical fitness for the Armed Forces and the Police Forces is more 9 OA No.1435/24 Item No.85 stringent than for civilian employment. We have, in Priti Yadav v. Union of India, 2020 SCC OnLine Del 951; Jonu Tiwari v. Union of India, 2020 SCC OnLine Del 855; Nishant Kumar v. Union of India, 2020 SCC OnLine Del 808 and Sharvan Kumar Rai v. Union of India, 2020 SCC OnLine Del 924, held that once no mala fides are attributed and the doctors of the Forces who are well aware of the demands of duties of the Forces in the terrain in which the recruited personnel are required to work, have formed an opinion that a candidate is not medically fit for recruitment, opinion of private or other government doctors to the contrary cannot be accepted inasmuch as the recruited personnel are required to work for the Forces and not for the private doctors or the government hospitals and which medical professionals are unaware of the demands of the duties in the Forces. In fact, the case of Priti Yadav (supra) also related to "cubital valgus‟. It is also to be noted that the specialists that the petitioner had consulted had also found that the petitioner suffered from "cubital valgus‟ and therefore, the findings by the Medical Boards were not wrong."
9. In so far as the plea of the Counsel for the petitioner, that he is not seeking appointment in Delhi Police, but a direction, for re- examination of the petitioner in a hospital under the Central Government, is also not appealing, when admittedly two boards have given concurrent findings that the petitioner, in view of "Cubitus Valgus‟, is unfit for appointment as a Constable in Delhi Police. There is no justification for this court to discard such opinions, more so, the petitioner has not challenged the constitution/competency of the two boards, which have declared him unfit. That apart no allegation of mala fide have been made by the petitioner against the members of the boards."
20. In Amardeep Singh v. Union of India, WP(C) No.7711/2011, the Hon'ble High Court held as under:-
"16. This is no more res-integra that in policy matters this Court has a very limited scope of interference. In Tamil Nadu Education Dept., Ministerial and General Subordinate Services Association v. State of Tamil Nadu and Ors., MANU/SC/0480/1979, the Supreme Court while examining the scope of interference by the 10 OA No.1435/24 Item No.85 Courts in public policy held that the Court cannot strike down a circular/Government Order or a policy merely because there is a variation or contradiction. The Court observed:
"Life is sometimes a contradiction and even inconsistency is not always a virtue. What is important is to know whether mala fides vitiates or irrational and extraneous factors fouls the case.". In that decision that Court also observed:
"Once, the principle is found to be rational, the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy. Every cause claims a martyr and however, unhappy we be to see the seniors of yesterday becoming the juniors of today, this is an area where, absent arbitrariness and irrationality, the Court has to adopt a hands-off policy."
17. xxx xxx xxx
18. The Government is entitled to make pragmatic adjustments and policy decisions which may be necessary or called for under the prevalent peculiar circumstances. While deciding the said case, the Court referred to and relied upon its earlier judgments in State of Madhya Pradesh v. Nandlal Jaiswal, MANU/SC/0034/1986 and Sachidanand Pandey v. State of West Bengal, MANU/SC/0136/1987, in which the Court held that judicial interference with policy decision is permissible only if the decision is shown to be patently arbitrary, discriminatory or mala fide. A similar view has been reiterated in Union of India and Ors. V. Dinesh Engineering Corporation and Anr. MANU/SC/0575/2011. In Ugar Sugar Works Ltd. V. Delhi Administration and Ors. MANU/SC/0189/2001, it has been held that in exercise of the powers of judicial review, the Courts do not ordinarily interfere with policy decisions of the executive unless the policy can be faulted on the ground of mala fide, unreasonableness, arbitrariness or unfairness etc. If the policy cannot be touched on any of these grounds, the mere fact that it may affect the interests of a party does not justify invalidating the policy.
19. In the circumstances, the plea of the learned counsel for the petitioner that Varicose Vein Rt. side, which had been corrected by surgical procedure, should not be a ground for declaring the petitioner to be medically unfit, cannot be accepted. If the petitioner is medically unfit, according to the uniform 11 OA No.1435/24 Item No.85 guidelines of medical standards laid down by the respondents, the petitioner is not entitled for any direction against the respondents to enlist him to the post of Constable (GD) as has been prayed for by the petitioner. Also there are no grounds for quashing the review medical examination conducted on 17th October, 2011 holding that the petitioner is medically unfit on account of Varicose Vein Rt. side being corrected by surgery. No cogent grounds have even contended for directing the respondents to constitute a special medical board for the medical examination to ascertain the fitness of the petitioner. This has not been disputed that the petitioner has Varicose Vein Rt. side and that it's correction by surgical procedure cannot be accepted, contrary to the yardstick laid down by the respondents as the medical fitness standards."
21. Learned counsel for the respondents contends that based on the above citations, it is evident that ordinarily the courts should not interfere in the selection process, more particularly, the constitution of medical board as the assessment has to be done by the board constituted by the respondents taking into consideration the functional requirements and the medical standards prescribed therein. Therefore, there is no requirement of constitution of a fresh medical examination.
22. Besides there is no ground to urge that there is an institutional bias nor the said respondents have been made party to the present proceedings i.e. the review medical board itself.
23. Learned counsel for the respondents relies upon the counter affidavit filed in OA No.519/2024 in all the similar matters. He broadly highlights the various ailments and the ratios laid down by various courts and the extent of interference by the courts in the matter of re- medical examination.
24. ANALYSIS 24.1 We have given thoughtful consideration to the contentions raised by the respective counsel for the parties. We are of the view that a detailed observation had been made in Salman's case i.e. in OA No.823/2024 (supra), wherein all contentions raised in the OA as well as the 12 OA No.1435/24 Item No.85 arguments put forth by the respective counsels for the parties were dealt with in great detail. We need not reiterate the same as the contentions and observations made therein be read as a part and parcel to the present OA as well.
24.2 Additionally, we also observe that it is not in dispute that physical test i.e. PE&MT was conducted prior to the medical and review medical board. We also find that a circular was also issued on 16.01.2024 as highlighted above wherein large number of candidates had been informed that the medical examination would require to be completed within a week's time.
24.3 We are conscious of the limitations of the directions. However, taking note of the observations already made in Salman's case(supra), wherein decision of Deepak Yadav had also been cited, we are of the considered view that we cannot take a divergent view as already taken by a co-ordinate Bench of this Tribunal and therefore, dispose of the OA in terms of Deepak Yadav's case i.e. in OA No.597/2024 dated 22.04.2024.
24.4 We appreciate the valuable assistance given by the respective counsels namely, Ms. Esha Mazumdar, Mr. Anil Singal and Mr. Amit Yadav, standing counsel appearing for Delhi Police.
25. CONCLUSION 25.1 In view of the above, we dispose of the present OA(s) by directing the respondents to get the applicant's re-medical examination done by a duly constituted Medical Board which would include the specialist in the respective field(s) and in case of women, a female specialist shall be part of panel, who shall opine in light of Clause 13.2 so as to arrive at a just conclusion whether the applicant is physically fit for appointment to the post of Constable in Delhi Police.
25.2 In order to arrive at a conclusive determination of medical fitness, the applicant should disclose and provide complete history of the past or existing aliments before the Review Medical Board. The candidate must also provide the full particulars of aliment(s) as to when it was diagnosed, nature of treatment undertaken by him/her, whether still undergoing treatment, is it 13 OA No.1435/24 Item No.85 temporary in nature or not, medication being undertaken and under whose medical supervision. Such disclosures shall be made by way of an affidavit along with all medical records.
25.3 In the event, the Review Medical Board comes to a conclusion that the candidate is medically fit they must give a conclusive finding to that effect. In cases of temporary unfitness, they must give specific observation(s) whether the candidate is functionally incapable to perform the duties as police constables keeping in mind that the said candidate has been declared medically fit by other similar organizations such as BSF, CRFP etc. 25.4 The re-review medical examination being undertaken now shall be final and binding on the parties.
25.5 Liberty is always there to verify the genuineness of the medical records/certificate of the candidates who are declared medically fit by the respondent authorities before issuing offer of appointment.
25.6 It is directed that the re-medical examination shall be undertaken within a period of 12 weeks from the date of receipt of a certified copy of this Order. Further, the respondents are directed to convey the decision to the applicant. In the event, the applicant is found to be fit, further action shall be taken in accordance with law. No order as to costs.
26. The OA is disposed of in the aforesaid terms. All pending applications, if any, are disposed of. No Costs."
3. In rebuttal, learned counsel for the respondents, Mr. Amit Yadav reiterates the averments made in the counter reply filed in the aforesaid case i.e. OA No.519/2024 wherein detailed submissions were recorded. The said OA has been 14 OA No.1435/24 Item No.85 disposed of today i.e. on 10.05.2024 vide a separate Order.
4. In the conspectus of things, we find that the facts in the present case and the ones in the aforesaid OA are similar, in all fours. Accordingly, the instant OA is also disposed of on the same analogy. Respondents are hereby directed to comply with the aforesaid directions (OA No.519/2024 - Teekaram Singh Meena vs. SSC and Ors.) within twelve weeks from the date of receipt of a certified copy of this order.
5. All pending MA(s) shall stand disposed of.
6. No order as to costs.
(Dr. Anand S Khati) ( Manish Garg) Member(A) Member(J) /vb/