Jharkhand High Court
Pawan Kumar Mahto vs Union Of India Represented Through ... on 15 February, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4672 of 2023
Pawan Kumar Mahto, aged about 26 years, son of Jawahar Lal Mahto,
resident of Balidih Goswami Tola, Village Balidih, Tanr balidih, P.O.
Balidih & P.S. Balidih, District Bokaro
... ... Petitioner
Versus
1. Union of India represented through Secretary to the Ministry of
Personnel, Public Grievances & Pensions, Department of
Personnel and Training, Staff Selection Commission, Block No.12,
CGO Complex, Government of India, Lodhi Road, New Delhi,
P.O. & P.S. Lodhi Road, New Delhi
2. Secretary, Minister of Home Affairs, Government of India, Lodhi
Road, New Delhi, P.O. & P.S. Lodhi Road, New Delhi
3. Regional Director (ER), Staff Selection Commission, 1st MSO
Building, (8th Floor), 234/4, P.O. Acharya Jagadish Chandra Bose
Road, P.S. Maidan, District Kolkata, West Bengal - 700020
4. Union of India, Ministry of Home Affairs through its Principal
Secretary, North Block, P.O. & P.S. Chanakyapuri, New Delhi -
110001.
5. Staff Selection Commission through its Chairman SSC, Block
No.12, CGO Complex, P.O. & P.S. - Lodhi Road New Delhi -
110003
6. Director General CRPF (Recruitment Branch) East Block - 7,
Level - 4, Sector 01, R.K. Puram, New Delhi 110066
7. The Director General (DG) 40th Bn, ITBPF, Post Office - Kanke
Road, P.S. - Kanke, Ranchi Jharkhand 834006
... ... Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mr. Rupesh Singh, Advocate
For the Respondents : Mr. Ajay Kr. Pathak, CGC
---
05/15.02.2024 This writ petition has been filed for the following reliefs:
"That in the instant writ application the petitioners pray for issuance of appropriate writ/ orders/directions in the nature of mandamus, directing and commanding upon the respondents to forthwith consider the eligibility of the petitioner by declaring the action of the respondents of declaring the petitioner unfit on the ground of having tattoo mark to be illegal, arbitrary and malicious.
And/Or For issuance of appropriate writ/ orders/directions in the nature of mandamus, directing and commanding upon the respondents to consider the petitioner selected if he is found eligible in every aspect except this tattoo mark on his hand And/Or For issuance of appropriate writ/ orders/directions in the nature of certiorari, directing and commanding upon the respondent not to make or publish or appoint candidates for the post till the result of this writ petition.
AND 2 Any other appropriate writ/ writs, order/ orders be passed, direction/ directions be issued as Your Lordships may deem fit and proper for doing conscionable justice to the petitioner.
1 (b) Quashing of decision of Review Medical Board dated 03.08.2023 whereby the petitioner has been declared unfit on account of tattoo mark on the anterior aspect of right forearm. (added vide I.A. No.1358 of 2024)."
2. The learned counsel for the petitioner has submitted that the petitioner had participated in the selection process for appointment of Constable (GD) in Central Armed Police Forces (CAPFs), SSF, Rifleman (GD) in Assam Rifles and Sepoy in Narcotics Control Bureau Examination, 2022. The petitioner duly qualified under the PST/ PET (Physical) test and was called for medical examination and the petitioner was declared unfit only for the reason of tattoo mark on his right forearm saluting hand. The detailed medical examination was done on 02.08.2023 and thereafter the petitioner was permitted to apply for review medical examination which was conducted on 03.08.2023 and ultimately the Review Medical Board also declined the candidature of the petitioner on the same ground i.e tattoo mark on his right forearm saluting hand.
3. The learned counsel has also referred to the clause in the advertisement (Annexure - I.A/1 of the Interlocutory application) with regard to 'tattoo' marks which is quoted as under:
"3) Tattoo: The practice of engraving / tattooing in India is prevalent since tir immemorial, but has been limited to depict the name or a religious figu invariably on inner aspect of forearm and usually on left side. On the other hand the present young generation is considerably under the influence of western culture and thus the number of potential recruits bearing skin art had grown enormously over the years, which is not only distasteful but distract from go order and discipline in the force.
Following criteria are to be used to determine permissibility of tattoo:
a) Content-being a secular country, the religious sentiments of countrymen are to be respected and thus tattoos depicting religious symbol or figure and the name, as followed in Indian army, are to be permitted.
b) Location-tattoos marked on traditional sites of the body like inner aspect forearm, but only LEFT forearm, being non saluting limb or dorsum of hands are to be allowed.
c) Size-size must be less than ¼ of the particular part (Elbow or Hand) of the body."
4. The learned counsel has submitted that no sufficient time was granted to the petitioner to apply for Review Medical Board by taking 3 remedial step in connection with the tattoo marks. The learned counsel submitted that tattoo marks is remediable and not of a permanent character and, therefore, the respondents ought to have granted opportunity to the petitioner to take remedial steps.
5. The learned counsel has relied upon following judgments: -
A. Judgment passed by Hon'ble Supreme Court in the case of Dharmvir Singh Vs. State of Uttar Pradesh in Writ Petition(s) Civil No(s).444 of 2019 decided on 19th July 2019 and has submitted that the though the recruitment process involved in the said case was in relation to some other selection process but it has been observed by the Hon'ble Supreme Court that though the petitioner was examined twice over and was found to be medically unfit but considering the nature of ailment and medical condition, the issue appeared to be remediable and not of any permanent character.
B. Judgment passed by the Hon'ble Rajasthan High Court reported in 2023 SSC OnLine Raj 3709 (Sanyogita Vs. Union of India) and has submitted that in the said case also similar provision regarding tattoo marks was under
consideration and the Hon'ble Rajasthan High Court has taken into consideration that at that point of time, the petitioner did not have any tattoo/skin art on her hand and the mark / scar of her tattoo removal continued to be on her arm due to which she was declared unfit. He has referred to paragraph no.11 of the said judgment which is quoted as under:
"11. Indisputably, the petitioner has successfully passed all the tests in pursuance to the selection process initiated by the respondents vide Annexure-1. However, her candidature had been rejected by the Review Medical Board on the ground of having tattoo removal scar mark over right forearm and a dorsum of the right hand. Thus, it is clear that presently petitioner does not have any tattoo/skin art on her hands. However, mark/scar of her tattoo removal continues to be on her arm, due to which she has been declared unfit. It is also not in dispute before this Court that certain category of candidates having tattoo on their body/hand are being provided appointment in the respondent-organization in conformity with Sub Clause-3 of the Clause-11 of the guidelines dated 20.05.2015. This Court does not find 4 any material available on record indicating that the tattoo removal scar mark over forearm and dorsum of the right hand in any manner creates impediment in discharging the duties attached with the advertised post.
This Court also does not find any material available on record that tattoo removal scar mark in any manner will interfere in the performance of duties of a Constable in the respondent-Organization. It would be highly unjust if the petitioner is deprived from employment in the respondent organization despite her possessing eligibility for the advertised post particularly when indisputably the tattoo in question has been removed by her."
6. This Court finds that the writ petition was filed on 23.08.2023 and the petitioner was seeking a mandamus from this Court as mentioned above and the specific case of the petitioner was that the guidelines for the medical examination does not make tattoo a ground for rejection (para-14 of the writ petition) and that a tattoo mark in no respect will cause hinderance officiating his duties in any manner and thus non-selection of the petitioner on the ground of having tattoo mark is nothing but an arbitrary act of the respondent (para- 15 of the writ petition). However, in the original writ petition the decision of the medical board was not challenged. When the matter was taken up on 01.02.2024, the petitioner sought time to file an interlocutory application seeking challenge to Annexure-7 (the review medical test) and consequently, I.A No. 1358 of 2024 was filed on 06.02.2024 and the amendment to the writ petition was allowed vide order dated 13.02.2024. Although there was no whisper in the main writ petition that the petitioner had ever taken any step for removal of tattoo nor it was the case that tattoo was already removed prior to the date of medical examination/review medical examination but through the amendment the petitioner has come up with a completely new fact that he had already undertaken the remedial steps of tattoo removal on 06.06.2023 by annexing a certificate of 'NS SKIN & HAIR CLINIC' dated 06.06.2023 that tattoo removal was done by laser under topical anesthesia. The guidelines of medical examination were also brought on record whose relevant portion has been quoted above. Admittedly, the medical examination was conducted on 02.08.2023 and the review medical examination was conducted on 03.08.2023.
7. The guidelines of medical examination as quoted above clearly provides that tattoo marks are not only distasteful but distract from 5 go order and discipline in the force. At the same time, the guidelines have acknowledged that the practice of engraving/tattooing in India is prevalent since time immemorial but has been limited to depict the name or a religious figure invariably on the inner aspect of the forearm and usually on the left hand and accordingly following two permissible criteria have been provided: -
a) Content-being a secular country, the religious sentiments of countrymen are to be respected and thus tattoos depicting religious symbol or figure and the name, as followed in Indian army, are to be permitted.
b) Location-tattoos marked on traditional sites of the body like inner aspect forearm, but only LEFT forearm, being non saluting limb or dorsum of hands are to be allowed.
c) Size-size must be less than ¼ of the particular part (Elbow or Hand) of the body."
8. It is not in dispute that the petitioner had a tattoo mark on the right forearm, the medical board's report which is the ground of rejection of the candidature of the petitioner is tattoo mark on his right forearm saluting hand. It is not the case of the petitioner that the medical board has incorrectly recorded the aforesaid fact. Rather, it was the case of the petitioner in the main writ petition that having a tattoo could not have been a ground for rejection, and through the amendment petition, a new and inconsistent case has been sought to be made out that the tattoo mark was already removed before medical examination as back as on 06.06.2023 by laser under topical anesthesia. Admittedly, in the present case, the detailed medical examination was conducted on 02.08.2023 and thereafter review medical examination was conducted on 03.08.2023 and the petitioner was declared unfit on account of a tattoo mark on his forearm.
9. Given the aforesaid conflicting stand of the petitioner in the writ petition vis-à-vis the amendment to the writ petition, even if it is assumed that the tattoo mark was removed as back as 06.06.2023, this Court is of the considered view that the impact of the removal, if any, of the tattoo mark was essentially for consideration within the domain of the respondents and this Court is not inclined to issue any such direction or make any such observation that the tattoo removal as required was done to make the petitioner medically fit as per the guidelines of medical examination dealing with induction in disciplined force involved in the present case. The photographs 6 annexed with the interlocutory application said to have been taken after the removal of the tattoo show that the marks have not gone totally.
10. This is over and above the fact that in the writ petition which was originally filed the petitioner had not raised any such ground that the tattoo marks stood removed before his medical examination nor it was the case of the petitioner that the factum of the presence of tattoo mark on his right forearm saluting hand has been wrongly recorded in the report of medical board/review medical board. Such claim of removal of tattoo marks before examination of medical board/review medical board has been introduced only through interlocutory application without any explanation as to why such a stand was not taken in the original writ petition. Even if the best case of the petitioner is taken into consideration, the tattoo marks have been said to be removed on 06.06.2023 still the candidature of the petitioner having been rejected twice on 02.08.2023 and thereafter on 03.08.2023. This Court does not find any reason to interfere with the orders passed by the respondents concerning the suitability of the petitioner in the detailed medical examination.
11. So far, the judgment passed by the Hon'ble Rajasthan High Court reported in the case of Sanyogita Vs. Union of India (supra) is concerned, the Hon'ble High Court had recorded that the petitioner of the said case did not have any tattoo/skin art on her hands and her candidature was rejected on the ground of having tattoo removal scar mark over right forearm and a dorsum of the right hand. In the present case, the medical boards have rejected the candidature of the petitioner on the ground of tattoo mark on his right forearm saluting hand and not on the ground that the petitioner had a tattoo removal scar mark. Initially, the writ petition was filed stating that there is no provision to reject the candidature on the grounds of having tattoo marks and later on an amendment was filed claiming that the tattoo marks were removed before medical examination by the medical board/review medical board. Such a plea has been rejected by this Court by citing reasons as mentioned above.
12. So far as the judgment passed by the Hon'ble Supreme Court in the case of Dharmvir Singh Vs. The State of Uttar Pradesh (supra) is 7 concerned, it has been observed that if the ailment or medical condition is remediable and not of any permanent character, the candidature need not be rejected. The said judgment does not apply in the present case. Two medical examinations of the petitioner as per the amendment to the writ petition were conducted after the remedial measures and the petitioner has been declared unfit. No satisfactory ground has been raised to reject the two medical reports and take a different view that too in writ jurisdiction.
13. As a cumulative effect of the aforesaid findings, this Court is not inclined to grant any relief to the petitioner as prayed under Article 226 of the constitution of India and consequently, the present writ petition is hereby dismissed.
14. Pending interlocutory application, if any, stands closed.
(Anubha Rawat Choudhary, J.) Saurav