Delhi High Court
Staff Selection Commission & Ors. vs Aman Singh on 24 October, 2024
Author: C. Hari Shankar
Bench: C. Hari Shankar, Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13821/2024, CM APPLs. 57902/2024 & 57904/2024
STAFF SELECTION COMMISSION & ORS. ....Petitioners
Through: Mr. Arnav Kumar, CGSC with
Ms. Shreeya Sud, Adv.
versus
AMAN SINGH .....Respondent
Through: Ms. Esha Mazumdar, Ms. Unni
Maya and Mr. Ishan Singh, Advs.
+ W.P.(C) 13748/2024 & CM APPL. 57560/2024
STAFF SELECTION COMISSION AND ORS .....Petitioners
Through: Mr. Ashish K. Dixit, CGSC
with Mr. Shivam Tiwari, Ms. Urmila Sharma
and Ms. Venni Kakkar, Advs. for UOI
versus
DEEPAK .....Respondent
Through: Ms. Esha Mazumdar, Mr. Setu
Niket and Ms. Unni Maya S, Advs.
+ W.P.(C) 13717/2024 & CM APPL. 57416/2024, CM APPL.
57418/2024
STAFF SELECTION COMMISSION & ORS. .....Petitioners
Through: Mr. Arnav Kumar, CGSC with
Ms. Shreeya Sud, Adv.
versus
VATAN SINGH .....Respondent
Through: Ms. Esha Mazumdar, Mr. Setu
Niket, Mr. Ishan Singh, Ms. Unni Maya, Ms.
Chetna and Mr. Devansh Khatter, Advs.
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 1 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
+ W.P.(C) 13762/2024 and CM APPL. 57684/2024
STAFF SELECTION COMMISSION
AND ORS .....Petitioners
Through: Mr. Rohan Jaitley, CGSC with
Mr. Dev Pratap Shahi, Mr. Yogya Bhatia,
Ms. Ranjana Jetley, Advocates
versus
KULDEEP .....Respondent
Through: Ms. Esha Mazumdar, Mr. Saket
Niket, Ms. Unni Maya S., Mr. Ishan Singh
and Mr. Devansh Khatter, Advocates
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT (ORAL)
% 24.10.2024
C. HARI SHANKAR, J.
1. We have, before us, a batch of writ petitions, assailing near-
identical orders passed by the Central Administrative Tribunal1. In
each case, the applicant before the learned Tribunal, who is the
respondent before us, had applied for recruitment to the post of
Constable in the Delhi Police, and was found unfit by a Medical
Board and/or by a Review Medical Board. In each case, the learned
Tribunal has directed the concerned applicant before it to be subjected
to a “re-review”, with the observation that the decision of the “re-
review medical examination” would be final and binding on the
parties. Aggrieved thereby, the Staff Selection Commission and the
1
“the learned Tribunal”, hereinafter
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 2 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
Delhi Police have petitioned this Court under Article 226 of the
Constitution of India, contending that there was no justification for a
direction to subject the respondents to a “re-review medical
examination”.
2. The impugned orders passed by the learned Tribunal are, to all
intents and purposes, identical. By way of example, the impugned
order in WP (C) 13821/2024, passed in OA 1828/2024 reads thus:
“At the outset, learned counsel for the applicant states that the
applicant is aggrieved by the result of 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 “Haemorrhoid”. 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 on 10.05.2024 in (Teekam Singh
Meena v SSC2) 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 standard already
prescribed and notified in terms of advertisement.
2
OA 519/2024, wrongly cited in the impugned orders as “Teekaram Singh Meena v SSC”
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 3 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
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 Ors3. 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.4, 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 Medical3
Order dated 12 July 2023 in CWP No. l0998/2022 (O&M)
4
Order dated 19 July 2019 in W.P.(C) No.444/2019
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 4 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
Board of three medical professionals having
expertise in the field be 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 v Staff Selection
Commission5.
13. Much emphasis is placed on the Order passed by
this Tribunal in Abhishek Khandelwal v UOI6, 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 all5
Order dated 22 April 2024 in OA No.597/2024
6
Order dated 19 April 2023 in OA No.1102/2022
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 5 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
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 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 Service 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
Delhi7, 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.
*****
24. In Bedanga Talukdar v Saifudaullah Khan
& others8, 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 in7
(2003) 3 SCC 548
8
(2011) 12 SCC 85
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 6 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
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.”
“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)Signature Not Verified
WP(C) 13821/2024 & connected matters Page 7 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
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 v UPSC and Anr9.;
(ii) Vidushi Gupta v Armed Forces Medical College10
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. F.7(1)-
27/51 M-II 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
9
2015 SCC OnLine CAT 1391
10
2012 SCC OnLine Del 4274
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 8 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
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-II 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 v Union of India and Ors.11
(ii) State of U.P v Rahul12
(iii) Mohan Kumar Gupta v State of U.P.13
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., 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
Police14 the Hon’ble High Court held as under:-
11
2023 SCC OnLine Del 4920
12
MANU/UP/0197/2016
13
Order dated 9 December 2019 in C.M.W.P No.15502/2019
14
Order dated 29 November 2022 in WP(C) No.3830/2019
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 9 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
“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 v Union of India &Ors.15,
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 stringent
than for civilian employment. We have, in Priti15
2020 SCC OnLine Del 1851
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 10 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
Yadav v Union of India16, Jonu Tiwari v Union
of India17, Nishant Kumar v Union of India18,
and Sharvan Kumar Rai v Union of India19,
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,20 the
Hon’ble High Court held as under:
16
2020 SCC OnLine Del 951
17
2020 SCC OnLine Del 855
18
2020 SCC OnLine Del 808
19
2020 SCC OnLine Del 924
20
2011 SCC OnLine Del 4809
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 11 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
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 Ors21, the
Supreme Court while examining the scope of
interference by the 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.”
*****
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
Jaiswal22 and Sachidanand Pandey v State of West
Bengal23, 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 Anr24. In Ugar
Sugar Works Ltd. v Delhi Administration and
Ors25, it has been held that in exercise of the powers
21
(1980) 3 SCC 97
22
(1986) 4 SCC 566
23
(1987) 2 SCC 295
24
(2001) 8 SCC 491
25
(2001) 3 SCC 635
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 12 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
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 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.
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 13 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
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’s26 case i.e., wherein all contentions raised
in the OA as well as the 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
26
Order dated 22 March 2024 in OA No.823/2024
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 14 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
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 temporary in nature
or not, medication being undertaken and under whose
medical supervision. Such disclosures shall be made by
wav 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.
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 15 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
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 disposed of 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 (Teekaram Singh Meena v SSC and Ors.)
within twelve weeks from the date of receipt of a certified copy of
this order.
5. No order as to costs.
3. In our considered opinion, the learned Tribunal has not
appropriately applied its mind to the individual facts of these cases. It
has merely reproduced an extract from its earlier judgment dated 10
May 2024 in Teekam Singh Meena and, thereafter, observing that
“the facts in the present case and the ones in the aforesaid OA are
similar, in all fours”, has directed the petitioners to comply with the
directions issued in Teekam Singh Meena, to hold a “re-review
medical examination” of the respondents. Ironically, the extract from
Teekam Singh Meena, on which the learned Tribunal has chosen to
rely, has cited the judgments of Division Benches of this Court in
Priyanka, Vijender Singh and Amardeep Singh, all of which
advocate against directing a fresh medical examination, once the
candidate had been found unsuitable by a Medical Board and a
Review Medical Board. As to how, in the face of these decisions, the
learned Tribunal directed the applicant in Teekam Singh Meena to be
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 16 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
subjected to a “re-review medical examination”, finds no mention in
the decision in that case, on which the learned Tribunal has chosen to
rely in the cases before us. All that is stated that the entire aspect had
been considered by the learned Tribunal in an earlier decision in
Salman. The entire cause title, or citation, of the omniscient Salman
decision is not forthcoming; neither is there any mention of the
registration number of the case, or the date when it was rendered, so as
to enable one to trace the judgment at least by conducting an internet
search. As to how Salman distinguished the decisions of this Court in
Priyanka, Vijender Singh and Amardeep Singh, is also not
forthcoming from the orders under challenge.
4. We, therefore, found ourselves, even at the outset, in, so to
speak, a cul de sac, with no real idea as to which way to go.
5. Given the number of matters involved, however, we deemed it
appropriate not to remand all the matters to the learned Tribunal for
consideration afresh, but to examine whether, on merits, the direction
for a fresh review examination of the cases of the concerned
applicants before the learned Tribunal could be sustained. Applying
the law in that regard, as we perceive it to be, we find that, in some
cases, the case of the concerned applicant did merit a fresh look,
while, in others, it did not. That, however, is on the basis of the facts
of each case, and not by a blind application of the law. We are
constrained to observe that, had the learned Tribunal undertaken this
exercise – which was required, in law, to undertake – considerable
time of this Court might have been saved.
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 17 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
6. We must record our appreciation for Ms Esha Mazumdar, who,
leading the arguments in the petitions covered by this judgment,
prepared a meticulous chart identifying the individual distinguishing
features of each case, and ably assisted us in arriving at what appears,
to us, to be the appropriate order to be passed in each individual case.
Rival Contentions
7. Petitioners’ submissions
7.1 Learned Counsel who argued for the petitioners contend that the
respondents were not entitled to be examined and re-examined ad
nauseam, and that, once they had been disqualified by a Review
Medical Board, the learned Tribunal was manifestly in error in
directing their re-re-examination. It is submitted that no mala fides
have been attributed either to the Medical Board or the Review
Medical Board. Stressing the fact that the issue involves recruitment to
the Police, which is a disciplined force on which the security and
safety of the citizenry is dependent, learned Counsel submit that the
standards of medical fitness are necessarily higher and more stringent.
In the absence of manifest arbitrariness, it is submitted that Courts
cannot direct yet another medical examination; else, the exercise
would never end.
7.2 Learned Counsel submit that there is a wealth of jurisprudence
on the issue, and cite, in their support, several decisions in their
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 18 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
written submissions. For many, though, the petitioners have neither
provided the date of judgment nor the citation. The decisions rendered
by Division Benches of this Court, for which details are forthcoming
are Himanshu Bansal v UOI27, Abhigyan Singh v UOI28, Priyanka,
Satender Kumar Yadav v UOI29, Vijender Singh, Ashish Kumar
Pandey v UOI30, Rockey v UOI31, Shailly Upadhyay v UOI32, Adhir
Kumar Verma v CRPF33, Priti Yadav v UOI34, Gaurav Dalal v UOI35,
Jonu Tiwari v UOI36, Pavan Kumar v UOI37, Rishi Bhardwaj v
UOI38, Jatin v UOI39 and Yogesh v UOI40.
8. Respondents’ submissions
8.1 Ms Mazumdar, leading arguments for the respondents,
submitted that, for one reason or another, the decision of the learned
Tribunal to direct a fresh medical examination of the respondent was
justified in each case. Among the infirmities which, according to her,
plagued each case, were unseemly hurry in carrying out the Review
Medical Examination41 after the initial Detailed Medical
Examination42, discrepancies between the report of the DME and the
RME, lack of specialists in the DME and RME Boards, failure on the
27
2022 SCC OnLine Del 3491 (DB)
28
2022 SCC OnLine Del 252 (DB)
29
2024 SCC OnLine Del 1886 (DB)
30
2021 SCC OnLine Del 3083 (DB)
31
2022 SCC OnLine Del 242 (DB)
32
2024 SCC OnLine Del 1997 (DB)
33
2022 SCC OnLine Del 144 (DB)
34
2020 SCC OnLine Del 951 (DB)
35
2022 SCC OnLine Del 170 (DB)
36
2020 SCC OnLine Del 855 (DB)
37
Judgment dated 13 July 2021 in WP (C) 1567/2021
38
2021 SCC OnLine Del 3075 (DB)
39
2021 SCC OnLine Del 5485 (DB)
40
Judgment dated 14 February 2019 in WP (C) 242/2019
41
“RME” hereinafter
42
“DME” hereinafter
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 19 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
part of the Review Medical Board to give any credence to the opinion
of the doctors or hospitals to which the Review Medical Board itself
referred the case, and the like. We have, while examining individual
cases, found many of these objections to be substantial, thereby
warranting a fresh look at the case, resulting in upholding of the
impugned order. That, however, has, as already noted, been on the
individual merits of the cases, and not on an omnibus application of
the law, as the learned Tribunal has done.
9. We do not intend to catalogue the submissions of Ms Mazumdar
here, as we would be referring to them while dealing with individual
petitions. In law, however, Ms Mazumdar relied on order dated 19
July 2019 passed by the Supreme Court in Dharmvir Singh, NTPC v
Nakul Das43 and the judgments of Division Benches of this Court in
Prashan Kumar v UOI44, Kamlesh Kumar Kamal v UOI45, Nisha v
UOI46 and Faizan Siddiqui v Sashastra Seema Bal47.
Analysis
10. The law
10.1 While the law normally advocates restraint, and deference, by a
Court which has, before it, the reports of Medical Boards and Review
Medical Boards which have assessed the suitability of a candidate for
43
(2014) 9 SCC 385
44
2023 SCC OnLine Del 4612 (DB)
45
MANU/DE/2473/2010
46
2022 SCC OnLine Del 504 (DB)
47
(2011) 124 DRJ 542 (DB)
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 20 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
recruitment to a service, there is no absolute proscription against
interference. In the ultimate eventuate, what matters is the ubiquitous
“judicial conscience”. Within the well-recognized constraints that the
law imposes, there can be no restraint against a Court rendering
justice, where it espies injustice to be taking place. If, therefore, the
Court finds that, ultimately, injustice has resulted to the candidate, it is
within its competence to step in and set things aright.
10.2 Two noteworthy examples of decisions of the Supreme Court
may be cited, in this context. In Nakul Das, the Supreme Court
directed re-examination of the candidate, despite his having been
disqualified by a duly constituted medical board, in the following
terms:
“19. Pursuant to the orders dated 9-5-2013 directing NTPC to
appoint the selected candidates, two out of the aforesaid five
appellants have been given appointment. However, cases of other
three appellants are rejected as in the medical examination
conducted, they are found medically unfit as suffering from
“colour blindness”. They are Appellants 1, 4 and 5. The learned
counsel appearing for these appellants submitted that their medical
examination was done in haste; they had made representation to
NTPC regarding constitution of Medical Board to re-examine their
cases to which NTPC was not agreeing; they had got themselves
medically examined from the same hospital and same doctor,
namely, NTPC, Kahalagaon Hospital and also outside doctor and
they had duly certified that these appellants were not suffering
from “colour blindness”. Additional affidavit dated 26-6-2005 is
filed including the result of their medical examination from out-
patient department of NTPC, Kahalagaon Hospital, as well as
opinion of some private doctors in support of the aforesaid
submission.
20. Having regard to the aforesaid facts, we are of the opinion
that it would be in the interest of justice that NTPC constitutes
another Medical Board for re-examination of these three appellants
and decide their fate on the basis of the opinion given and take
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 21 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
further action on the basis of opinion given by the reconstituted
Medical Board. This appeal is disposed of on the aforesaid terms.”
While it may be arguable whether these paragraphs amount to
declaration of any binding legal principle by the Supreme Court
within the meaning of Article 141 of the Constitution of India, it is
noteworthy that the Supreme Court felt it appropriate to direct a
review medical board to be constituted to examine the candidates on
their complaint that their medical examination had been done in haste,
and that the very hospital which had examined them, as well as
outside hospitals, had certified them as not suffering from colour
blindness – the ailment by reason of which they were disqualified.
10.3 Veer Pal Singh v Ministry of Defence48, rendered by a Bench
of three Hon’ble Judges of the Supreme Court, is an even more
extreme example. In the following passage from the decision, the
Supreme Court has classically outlined the nature of approach that the
Court should adopt, as one of reticence, but not of reverence:
“10. Although, the courts are extremely loath to interfere with
the opinion of the experts, there is nothing like exclusion of
judicial review of the decision taken on the basis of such opinion.
What needs to be emphasised is that the opinion of the experts
deserves respect and not worship and the courts and other
judicial/quasi-judicial forums entrusted with the task of deciding
the disputes relating to premature release/discharge from the army
cannot, in each and every case, refuse to examine the record of the
Medical Board for determining whether or not the conclusion
reached by it is legally sustainable.”
(Emphasis supplied)
48
(2013) 8 SCC 83
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 22 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
There is no reason why the italicized words of advice, with which the
above passage concludes, should not apply as much in a case of
assessing suitability for recruitment to a disciplined force, as to
suitability for discharge therefrom. In either case, it is the suitability of
the candidate to function and perform as a member of the force which
is determinative.
10.4 In the case before it, the appellant Veer Pal Singh applied for
disability pension. The application was rejected on the ground that he
was suffering from schizophrenia which was not attributable to army
service. The appellant contested this finding. After a thorough study
of schizophrenia, its various faces and facets, and examining literature
on the subject, the Supreme Court found the certificate of the doctor,
who certified Veer Pal Singh to be suffering from schizophrenia, to be
faulty. The Supreme Court also faulted the Tribunal, from whose
order it was deciding the appeal, for not having undertaken the
requisite study and analysis in this regard and, instead, having rejected
the case on a general observation that it could not sit in appeal over
the decision of medical experts. Even more significantly, the Supreme
Court also criticized the Tribunal for not having taken into
consideration the degree of improvement in the medical condition of
Veer Pal Singh after treatment. Paras 17 to 19 of the report are
instructive, and read thus:
“17. Unfortunately, the Tribunal did not even bother to look into
the contents of the certificate issued by the Invaliding Medical
Board and mechanically observed that it cannot sit in appeal over
the opinion of the Medical Board. If the learned members of the
Tribunal had taken pains to study the standard medical dictionaries
and medical literature like The Theory and Practice of
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 23 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
Psychiatry by F.C. Redlich and Daniel X. Freedman, and Modi’s
Medical Jurisprudence and Toxicology, then they would have
definitely found that the observation made by Dr Lalitha Rao was
substantially incompatible with the existing literature on the
subject and the conclusion recorded by the Invaliding Medical
Board that it was a case of schizophrenic reaction was not well
founded and required a review in the context of the observation
made by Dr Lalitha Rao herself that with the treatment the
appellant had improved. In our considered view, having regard to
the peculiar facts of this case, the Tribunal should have ordered
constitution of Review Medical Board for re-examination of the
appellant.
18. In Controller of Defence Accounts (Pension) v S.
Balachandran Nair49 on which reliance has been placed by the
Tribunal, this Court referred to Regulations 173 and 423 of the
Pension Regulations and held that the definite opinion formed by
the Medical Board that the disease suffered by the respondent was
constitutional and was not attributable to military service was
binding and the High Court was not justified in directing payment
of disability pension to the respondent. The same view was
reiterated in Ministry of Defence v A.V. Damodaran50. However,
in neither of those cases, this Court was called upon to consider a
situation where the Medical Board had entirely relied upon an
inchoate opinion expressed by the psychiatrist and no effort was
made to consider the improvement made in the degree of illness
after the treatment.
19. As a corollary to the above discussion, we hold that the
impugned order as also the orders dated 14-7-2011 and 16-9-2011
passed by the Tribunal are legally unsustainable. In the result, the
appeal is allowed. The orders passed by the Tribunal are set aside
and the respondents are directed to refer the case to the Review
Medical Board for reassessing the medical condition of the
appellant and find out whether at the time of discharge from
service he was suffering from a disease which made him unfit to
continue in service and whether he would be entitled to disability
pension.”
10.5 Thus, the Supreme Court, in Veer Pal Singh, went to the extent
of holding that the Tribunal (the Armed Forces Tribunal, in that case)
ought to have perused authoritative texts on psychiatry, in which case
49
(2005) 13 SCC 128
50
(2009) 9 SCC 140
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 24 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
it would have found the opinion of the expert Dr Lalitha Rao
unworthy of credence.
10.6 In K. Srinivasa Reddy v UOI51, the Supreme Court held the
appellant before it to be entitled to disability pension on the ground
that, though the Medical Board and the Review Medical Board had
both found him to be suffering from schizophrenia, no such diagnosis
had been made at the time of his entry into service, and neither the
Medical Board, nor the Review Medical Board, had opined that the
ailment was not caused, or aggravated, by military service. On the
principle that an ailment which found no mention at the time of
enrolment in military service, and was later found to exist, had
necessarily to be presumed to be attributable to military service,
however, another two-Judge Bench of the Supreme Court expressed a
contrary view, in Ex CFN Narsingh Yadav v UOI52. The issue does
not, however, concern us.
10.7 Several Division Bench decisions of this Court have, as already
noted earlier, been cited at the Bar, and it would be appropriate to
briefly refer to them. One may proceed chronologically.
10.8 Kamlesh Kumar Kamal, authored by Gita Mittal J (as she then
was) flagged, in the very opening paragraph, the importance of the
issue which arose in that case, as “the manner in which medical
boards are to be constituted and conducted by the Central Police
51
2014 SCC OnLine SC 1898
52
(2019) 9 SCC 667
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 25 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
Organisation53″. The Delhi Police, with which we are concerned, is
not part of the CPO, but the decision contains important pointers,
which are of aid in navigating these petitions. In that case, this Court
relied on an Office Memorandum dated 30 March 1963, which
stipulated the constitution of Medical Boards to conduct medical
examinations for gazetted and non-gazetted posts in the Central
Government. Reliance was also placed, by this Court, on an earlier
decision rendered by the Division Bench in Anish Barla v UPSC54,
which seriously disapproved a decision that the appellant before the
Division Bench was disqualified from appointment on the ground that
he had “inveterate skin disease”, when the Medical Board which
returned a finding did not contain any person qualified in
dermatology. After referring to other decisions on the point, the
Division Bench held as under, in paras 24 to 27 of the judgment:
“24. The issue which has been raised in all the above cases as
well as the present case is extremely imperative. Apart from the
rights of the individuals who are medically examined, there is a
large element of not only public interest but of national interest as
well in as much as the personnel who are being evaluated with
regard to medical fitness, are required to perform stringent and
difficult duties not only within the borders of the country but in
extremities of climate at remote places at the far off borders.
Therefore, while cases relating to persons being wrongly declared
as unfit have been brought to our notice, at the same time, the
possibility of persons being wrongly declared as fit cannot be ruled
out. It is, therefore, essential that wherever, there is any kind of a
doubt with regard to the medical fitness of any person, the
respondents must react promptly keeping in view the medical
status and the discipline which may be involved.
25. As in the present case, on several occasions we have found
that a board of experts constituted under our orders, has differed in
their reports with the certification of medical unfitness of a53
“CPO” hereinafter
54
(2006) 131 DLT 170 (DB)
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 26 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
candidate by a review/appeal medical board which did not include
a specialist. This fact by itself manifests that the respondents and
authorities need to take a re-look at the policy framed almost four
decades ago (thirty seven years ago to be precise in 1973). Having
regard to the importance of the matter, we would have expected
and appreciated a suo moto examination of the same by
respondents, especially in the light of the aforesaid observations.
But unfortunately, it has not happened.
26. The instructions and guidelines which are issued by the
respondents are required to keep pace with not only the social
developments but with developments in technology and in medical
science as well as availability of superior diagnostic techniques as
well as specialities and specialists in various discipline and
specialities in medicine.
The issue is urgent, but the matter relates to policy and
administrative instructions. Our jurisdiction is limited. However,
inasmuch as our previous observations and orders have made not a
wit of a difference in the constitution of a medical board, we are
compelled to issue the following directions.
27. In view of the above, the respondents are directed to ensure
that the review/appellate medical board(s) which are constituted,
shall include an expert of the medical specialty which is involved.
In case such an expert is not available at the place where the
candidate is being examined, the candidate will be informed of the
same and shall be required to report to a medical board which shall
be arranged at the closest available formation of the force/service
concerned. In case such candidate is unwilling for any reason to
report for a medical examination at such place for medical
examination, it shall be open for the respondents to reject the
review/appeal.”
An important takeaway from the decision in Kamlesh Kumar Kamal,
which can really brook no cavil, is that, where the ailment from which
the petitioner is diagnosed as suffering, by the Medical Board or the
Review Medical Board, is one which, ex facie, would require a
specialist’s opinion, and there is no specialist on either Board, the
Court would legitimately step in. This, therefore, is one of the
exceptions to the general principle of reticence, in the matter of
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 27 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
judicial review over the decisions of Medical Boards or Review
Medical Boards.
10.9 To the same effect is the subsequent decision in Faizan
Siddiqui, also authored by Gita Mittal J, which involved a female
candidate seeking recruitment into the Border Security Force55, who
was suffering from Complete Androgen Insensitivity Syndrome and
had undergone Gonadectomy, as a remedial treatment. This Court
disapproved a finding of unfitness, returned by a Medical Board
which did not include an endocrinologist, and directed re-assessment
of the candidate by a Medical Board which did include one.
10.10 Amardeep Singh involved the case of candidates seeking
appointment as Constable in the BSF. He was declared unfit on the
ground that he had “varicose vein right side”. The petitioner
Amardeep Singh contended that he had been asked to get operated and
obtain necessary medical certificate from a medical practitioner and
file an appeal for review of the medical examination. He stated that
he had undergone a minor surgery, after which he had been declared
medically fit by the District Hospital. The Review Medical Board
nonetheless declared him unfit on the ground of “Varicose Vein
operated”. Aggrieved thereby, Amardeep Singh approached this
Court. The Division Bench noted that, in the notice inviting
applications, it was specifically stipulated that the candidate must not
suffer from Varicose Vein. Further, the Uniform Guidelines issued in
this regard also categorically stated that operated cases of Varicose
55
BSF
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 28 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
Vein would not be accepted. It was further noted that Amardeep Singh
was unable to state who had advised him to undergo a surgical
procedure for correction of his condition. This Court, therefore,
refused to accept the contention. In these circumstances, it was held
that no scope for interference had been made out and, accordingly, the
writ petition was dismissed.
10.11 It is important to note that the Division Bench was considerably
influenced by the fact that Amardeep Singh was unable to identify the
person who had asked him to undergo an operation and obtain a
certificate of fitness, as well as by the fact that the applicable
guidelines specifically stipulated not only that a candidate with
Varicose Veins would not be eligible for appointment, but that this
ineligibility would also extend to operated cases of Varicose Vein.
10.12 Yogesh was a case in which the petitioner had been examined
by a Special Medical Board as well as an Appellate Medical Board,
both of which declared him unfit for admission to the National
Defence Academy. The Appellate Medical Board included a
specialist in the requisite discipline. The petitioner Yogesh sought a
fresh examination on the basis of a certificate obtained from the All
India Institute of Medical Sciences56. This Court held that if the
Medical Board, which contained a specialist, had found Yogesh to
suffer from the disabling ailment, no case for referring the matter for
fresh examination existed. This decision, therefore, clearly holds that,
where the Medical Board which examined the candidate included a
56
AIIMS
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 29 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
specialist in the discipline concerned, a certificate from another
hospital, irrespective of its eminence or status, would not make out a
case for directing a fresh examination.
10.13 Priti Yadav was a case in which the petitioner Priti Yadav57 was
disqualified from entry into the Air Force on the ground that she
suffered from cubitus valgus, a condition in which the arms are
abnormally angled away from the body. She was considered by a
Medical Board, a Review Medical Board and an Appellate Medical
Board, all of which returned concurrent findings regarding the
disability. Priti petitioned this Court. This Court found that, while the
Medical Board and the Appellate Medical Board arrived at their
findings on a visual examination without aid of any mechanical
devices, the Review Medical Board, by the senior most radiologists at
the Army Research & Referral Hospital had, on visual as well as
mechanical and manual examinations, confirmed the diagnosis of the
Medical Board and the Appellate Medical Board and found Priti unfit
for recruitment to the Air Force. In these circumstances, this Court, in
paras 9 and 10 of the report, found that no case for interference had
been made out:
“9. We have today again considered whether the petitioner is
entitled to yet another chance and are unable to find any
justification for the same. We have already in the order dated
6th July, 2020 observed that fitness for serving requisite duties in
the Air Force is a matter of opinion and if in the opinion of the
authorities constituted under the Rules of the Air Force the
petitioner is unfit, a report of a medical practitioner of another
organization which does not intend to recruit the petitioner and
which will not be affected by the medical unfitness of the57
“Priti” hereinafter
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 30 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
petitioner, cannot be the basis for interfering with the assessment
by the Air Force. It cannot be lost sight of that just as in justice
delivery, appeal provisions are provided to eliminate the possibility
of human error, so have a sufficient number of opportunities of
preferring an appeal and thereafter preferring a review have been
provided in the matter of medical examination and just like the
decision making before the Courts cannot be indefinite, so can the
decision making with respect to medical fitness in the Air Force,
cannot be indefinite. There has to be a finality in decision making,
as is there in the justice delivery system. It cannot be lost sight of
that no mala fides are attributed with respect to any of the medical
examinations or to the team of medical professionals conducting
the medical examination. It is the medical practitioners of the Air
Force and Defence Services, who have themselves undergone the
requisite trainings and discharge the functions of the organization,
who are best suited to form an opinion as to the medical fitness of
the candidates to be recruited and once they have so formed their
opinion, there can be no interference therewith, at the mere asking
of a rejected/disgruntled candidate.
10. We also find sufficient explanation in the record produced
by the counsel for the respondents, for the differences highlighted
by the counsel for the petitioner in the successive medical reports
and are satisfied that no doubt remains with respect to the finding
of medical unfitness of the petitioner. It cannot also be lost sight of,
that it is not a case where any of the three successive Medical
Boards found the petitioner medically fit for recruitment in the Air
Force; all the three Medical Boards have found the petitioner unfit
with the difference only in extent of unfitness.”
(Emphasis supplied)
Thus, while, in para 9 of the judgment, the Division Bench has
impressed on the need for finality in decision making and the
advisability to avoid directing fresh examinations where no mala fides
are attributed to the professionals who performed the medical
examinations, para 10 also notes the fact that, though there were
discrepancies in the results of the examinations which had been
undertaken, they were satisfactorily explained by the Counsel for the
Union of India and that the petitioner had been found unfit for
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 31 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
recruitment to the Air Force by three successive Medical Boards, who
were concurrent in their decision.
10.14 The petitioner in Jonu Tiwari applied for recruitment as an
Airman in the Indian Air Force. He was found unfit for recruitment
both by the Medical Board as well as by the Appeal Medical Board as
he suffered from “Varicocele (Left)”. Contending that the District
Hospital, Agra had opined to the contrary, Jonu Tiwari petitioned this
Court, praying that the respondents be directed to re-examine him. It
was also contended that he had undergone surgery, which had
corrected his condition. It was further submitted that varicocele could
be minor or major, and the reports of the Medical Board and the
Appeal Medical Board did not clarify the position. Certain other
contentions, regarding the manner in which the examination was
conducted, were also advanced which, on perusal of the records, were
found to be unmerited.
10.15 This Court declined to accede to the request of Jonu. It was
observed that “what may be considered as ‘minor’ or ‘slight’ may
have a major effect on the functions required to be performed”. The
private medical practitioners, whom Jonu contacted, it was observed,
were not in a position to judge the effect of the varicocele, from which
Jonu suffered, on the discharge of his functions as an Airman.
Doctors of the Air Force alone would be possessed of the requisite
expertise in this regard. Relying on its earlier decision in Priti Yadav,
the Division Bench held, further, that an outside medical report could
not be the basis for interfering with the assessment of the petitioner
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 32 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
conducted by a specialist of the Air Force. It was also observed, in
conclusion, that Jonu had not been able to make out a case on the
basis of which the Court could entertain any doubt about the
correctness of the findings of the Medical Board or the Appeal
Medical Board.
10.16 Priyanka involved a candidate aspiring to the post of Constable
in the Central Armed Police Forces. She was declared medically unfit
for recruitment as she was suffering from Cubitus Valgus, with
carrying angle, on both sides, exceeding 20o. She obtained the opinion
of a specialist orthopaedic surgeon from a private hospital who
declared her to be fit, observing that “there is a bit Cubitus Valgus
carrying angle < 20o (18o)”. Two other reports, also from private
hospitals, certifying that the degree of Cubitus Valgus, from which
Priyanka suffered was less then 20o, were also produced.
10.17 Among the contentions which Priyanka raised before this Court
was the submission that, as per the applicable Guidelines, one subject
specialist was required to be included in the Review Medical Board,
and, in fact, no such subject specialist was present. This Court,
however, observed that no basis for this allegation was forthcoming
from Priyanka, and that her Counsel was also unable to disclose the
source of his information that no subject specialist was present on the
Review Medical Board. As such, this contention was not accepted.
10.18 The Court, thereafter, went on to hold, in paras 8 to 10 of the
report, thus:
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 33 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
“8. We have on several occasions observed that the standard of
physical fitness for the Armed Forces and the Police Forces is
more stringent than for civilian employment. We have, in Priti
Yadav v. Union of India, Jonu Tiwari v. Union of India, Nishant
Kumar v. Union of India58, and Sharvan Kumar Rai v. Union of
India59, 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. What may seem as a minor difference in the assessment of
the Civil doctors in comparison to the assessment of the Medical
Boards, may blow up into a serious health condition during the
course of service with the CAPFs. It is not in the interest of either
the Police Forces or candidates that their medical problems are
brushed aside only on the plea that it was a question of
employment. The general health of candidates would be
permanently impacted due to the stress, both physical and mental,
on account of these medical shortcomings. On the other hand, the
government would be saddled with a Police Force where such
personnel would seek soft postings because of their health
conditions and low medical category. This would lead to
dissatisfaction amongst the personnel in the Forces as some people,
who ought not to have been taken into the Forces, would always
benefit, whereas the others would be mostly faced with hard
postings and duties.
10. The petitioner has availed of all opportunities to get a
second opinion during the Appeal/Review Medical Board and
there is no purpose left in getting a further medical examination
conducted.”
(Emphasis supplied)
58
2020 SCC OnLine Del 808
59
2020 SCC OnLine Del 924
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 34 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
10.19 Three aspects are underscored in this decision; firstly, that
standards of medical fitness for recruitment to Armed Forces or to the
Police are more rigorous than for civil employment; secondly, that, if
no mala fides are attributed to the Medical Board, which consists of
doctors who are aware of the requirements of the Force to which
recruitment is being made, the opinion of other government or private
doctors, requisitioned by the candidate, cannot be a ground to direct
the re-examination; and, thirdly, that an ailment which may appear to
be minor to a civilian doctor might blow up into a serious hindrance in
the discharge of duties by the candidate concerned, consequent to on
recruitment.
10.20 Ashish Kumar Pandey, on facts, is similar to Priyanka. The
petitioner Ashish Kumar Pandey60 was disqualified from admission to
the National Defence Academy by a Medical Board as well as by an
Appeal Medical Board on the ground that he had substandard unaided
vision in both eyes and refractive error beyond the permissible limit.
Premised on such reports obtained by him from the AIIMS and other
government hospitals, certifying him to be fit, Ashish petitioned this
Court, praying that a Review Medical Board be directed to be
constituted. It was also pleaded, by Ashish, that he could be
accommodated in other branches of the Armed Forces, but the Court
found that there was no evidence that he had opted for recruitment to
any other branch. This Court, however, rejected the writ petition of
Ashish primarily on the ground of inordinate delay in approaching the
Court, as the writ petition was filed nearly 2 years after he had been
60
“Ashish”, hereinafter
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 35 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
found and fixed by the Medical Board. On merits, the Court reiterated
the view earlier expressed by it in Priti Yadav and Jonu Tiwari that,
as Ashish had been disqualified by doctors of the Forces, who were
best aware of the demands of duties of persons who joined, no mala
fides had been attributed, opinions of private or other Government
doctors could not be taken into account in such circumstances and the
fitness standards required to be made for joining the Armed Forces
were necessarily higher than for joining civilian jobs, no case for
interference existed.
10.21 Pavan Kumar involved a batch of writ petitions of candidates
who desired to join as Head Constable in the BSF and who had been
declared medically unfit by a Medical Board and by a Review
Medical Board as suffering from varicocele in some cases, and
haemorrhoids in others. The candidates had undergone corrective
surgeries, and one of the contentions that were raised was that a
candidate required at least 6 months after such surgery to be declared
fit, and the Review Medical Board was constituted within 6 months of
the surgery.
10.22 This Court found that the applicable instructions in the Medical
Manual specified 6 months from the date of surgery in post-operative
cases, and that the candidates had in fact been examined by the
Review Medical Board before the said period of 6 months was over.
Having so observed, the Division Bench went on, nonetheless, to
dismiss the writ petitions, observing and holding as under in paras 11
to 14 of the judgment:
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 36 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
“11. From a bare reading of the provisions of the policy, it is
clear that the petitioners require six months time after the
corrective surgery to be declared medically fit. The petitioners in
the present petitions underwent corrective surgery for
Varicocele/Haemorrhoids on 23rd September, 2020/ 29th
September, 2020 on account of which they were declared
medically unfit by the Review Medical Board on 6th January,
2021/ 16th January, 2021. It is not denied that the petitioners have
been examined by the Review Medical Board before the expiry of
the aforesaid period of six months. Even though, the counsel for
the petitioner in W.P.(C) No.1567/2021 has submitted that there is
nothing on record to show that the petitioner did not suffer from
that degree of Varicocele which meets the criteria for being
declared medically unfit, it is obvious that the petitioner was
conscious of the fact that he suffered from Varicocele and
therefore underwent a corrective surgery.
12. Once the Medical Manual requires a period of six months
after the date of surgery for a candidate to be declared fit, strict
adherence thereto is necessary. It has been held in repeated
judgments that terms and conditions of the policy of the
respondents have to be strictly followed for recruitment to the
Armed Forces. Reference in this regard may be made to the
judgment dated 27th May, 2021 in W.P.(C) No.1341/2021 titled
as Pooja v Union of India & Ors., Ishwar Singh v Union of
India61, Priti Yadav v Union of India, Aman Yadav v Union of
India62, Sharvan Kumar Rai v Union of India63, Jonu Tiwari v
Union of India & Ors. (Special Leave Petition (Civil) No.
13492/2020 preferred against which was dismissed on 17th
December, 2020) and judgment dated 24th September, 2020 in
W.P.(C) 2591/2020 titled Pavnesh Kumar v Union of India64.
13. We have also noted in the judgment dated 7th July, 2021 in
W.P.(C) 6163/2021 titled as Nitin Jhakar v Union of India &
Ors. that the level of fitness required for a person to serve in
Armed Forces is much higher than in normal civilian life, therefore
it is the opinion rendered by the medical experts of the
respondents, who are well versed with the demands of the duties of
the forces and not of doctors of other private or government
hospitals, which has to prevail, unless some doubt is created with
respect to the opinion of the medical experts of the respondents or
any error in the conduct of medical examination is shown.
61
2021 SCC OnLine Del 2573
62
2021 SCC OnLine Del 2495
63
2020 SCC OnLine Del 924
64
2020 SCC OnLine Del 2746
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 37 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
No such case is made out in the present case.
14. Therefore, the Review Medical Board has rightly declared
the petitioners to be unfit as per the provisions of the Medical
Manual. No interference is called for.”
10.23 With greatest respect, it does not appear, to us, to be very clear,
from the decision in Pavan Kumar, as to why, after having observed
that, where the applicable instructions required 6 months after surgery
for a candidate to be declared fit from varicocele or haemorrhoids, and
having noted that the Review Medical Board, in the case of the
petitioners before it had in fact been conducted within 6 months of the
surgery, the Division Bench nonetheless dismissed the petitions. It
appears that the judgment proceeds more on the premise that no
illegality, in the proceedings of the Review Medical Board, was
pointed out. Also, from the reading of the extracted instructions from
the Medical Manual, it is not clear as to whether the Manual in fact
required the Review Medical Board to be constituted more than 6
months after the surgery was conducted, or merely stipulated that,
post-surgery, the candidate would take at least 6 months to become fit
for duty. In the former eventuality, it is possible that the Division
Bench did not treat the instructions as mandating a lapse of a period of
6 months between surgery and the Review Medical Board. Viewed
any which way, the decision in Pavan Kumar must be regarded as
turning on its own facts.
10.24 In Abhigyan Singh, the petitioner65 desired to be appointed to
the Indian Air Force. The Initial Medical Board found him medically
65
“Abhigyan”, hereinafter
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 38 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
unfit as he suffered from scoliosis of the lumbar spine, and his
Electrocardiogram66 also showed “right bundle branch block”67. He
was referred, for a second opinion, to the Command Hospital. The
Senior Cardiologist in the Command Hospital performed an
Echocardiogram68 on Abhigyan, on the basis of which he was
declared fit. Abhigyan, thereafter, appealed to the Appeal Medical
Board69, stating that his unfitness was only on account of scoliosis of
the lumbar spine. The AMB conducted an x-ray of Abhigyan’s spine
and also directed him to undergo another Echo test at the Base
Hospital. Following this test, Abhigyan was declared medically unfit,
as his ECG was abnormal. The Court, in the circumstances, directed
the doctors who had examined Abhigyan to be present during the
hearing by video link. The cardiologist explained that an
echocardiogram would only show organic heart disease but that, as the
ECG itself showed Abhigyan to be suffering from RBBB, it was not
possible to declare him fit. He also referred, in this context, to a clause
in the advertisement in response to which Abhigyan had applied,
which only permitted “incomplete RBBB” at the initial stage, as
permissible level of disability, whereas Abhigyan’s case was one of
complete RBBB. In these circumstances, even while relying, in
general, on the principle of circumspection while dealing with cases
where adverse medical reports were before the Court, the decision
turned on the fact that Abhigyan suffered from complete RBBB, and
had two concurrent adverse medical opinions against him on this
issue, by the Initial Medical Board and the AMB.
66
“ECG”, hereinafter
67
“RBBB”, hereinafter
68
“Echo”, hereinafter
69
“AMB”, hereinafter
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 39 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
10.25 The petitioner in Rockey applied for induction into the Indo
Tibetan Border Police70 force as a Constable. In his DME, Rockey
was found to suffer from defective distant vision and anal fistula and
was, therefore, declared to be medically unfit. The Review Medical
Board declared Rockey fit ophthalmologically, with 6/6 vision, but
referred him to one Dr. Manoj Gupta, in a private hospital, to examine
him for anal fistula. Dr. Manoj Gupta declared Rockey unfit as
suffering from anal fistula. Rockey sought a re-examination,
unsuccessfully. In these circumstances, Rockey petitioned this Court
and relied on an examination report by the Medical Officer,
Government Hospital, Bhiwani, who had declared him to be medically
fit. Among the contentions advanced by Rockey before this Court was
the plea that the Notification inviting applications for recruitment had
stipulated a 15 day gap between the DME and the RME, whereas, in
his case, the RME had been conducted a mere 2 days after the DME.
He contended that anal fistula was a temporary condition and that, had
the RME been conducted after the stipulated period from the DME, he
would have been found to be fit.
10.26 The Court, in the circumstances, questioned Dr. Anil Kumar, a
surgeon, who had medically examined Rockey at the RME stage. Dr.
Anil Kumar stated that Rockey had been found to be suffering from
anal fistula during examination. While acknowledging that the post-
operative recovery in such cases was fairly short, he submitted that
anal fistula was a stipulated disqualification in the applicable70
“ITBP”, hereinafter
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 40 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
guidelines for recruitment to the Central Armed Police Forces.
Apropos the issue of why the RME was conducted 2 days after the
DME, Dr. Anil Kumar relied on an Office Memorandum dated 31
May 2021, which amended the Guidelines and required the RME to
be conducted within 2 days of the DME.
10.27 This Court found that anal fistula was one of the enumerated
disqualifications in the guidelines applicable to DME and, therefore,
held that the curability, or temporary nature, of the condition, was
irrelevant. It was observed that this Court could not redefine the
medical standards applicable for recruitment to the Armed Forces,
which were necessarily much more stringent and vigorous than those
for civilian employment. It was also noted that there was no challenge
to the stipulation, in the Guidelines, disqualifying a candidate
suffering from anal fistula from recruitment to the Armed Forces. The
plea that the RME had been conducted within 15 days of the DME
was also rejected, in view of the amendment to the Guidelines,
requiring the RME to be conducted on the very next day of the DME
and, in any event, within two days. An important observation, by the
Division Bench, in this decision, is to be found in para 19 of the
report, which holds that “the purpose of the RME is not to give time
to the candidates to cure the disqualification but to assure that the
IMB has not made a mistake in examination of the candidate”. This
position of law, it was noted, had earlier been exposited by this Court
itself in Avin Dalal v UOI71. The Court also relied on its earlier
decisions in, among others, Priyanka, to reiterate that favourable71
2022 SCC OnLine Del 32
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 41 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
opinions from outside hospitals could not constitute a legitimate basis
for directing a fresh medical examination of the candidate.
10.28 In Nisha, the petitioner Nisha applied for appointment as Sub-
Inspector in the Delhi Police and other Central Armed Police Forces.
In the DME which was conducted, she was declared medically unfit
as she was found to be suffering from anaemia, knock knee and flat
foot. The RME declared her unfit only on the ground of flat foot, but
did not find her to be unfit as suffering from anaemia or knock knee.
She was nonetheless held to be ineligible for appointment as Sub
Inspector. She, therefore, petitioned this Court.
10.29 Before this Court, Nisha contended that the respondents
themselves had, prior to the RME, referred her to the Jawahar Lal
Nehru Hospital72 for medical examination and that the JLN Hospital
had found her not to be suffering from any of the disqualifications
noted in the DME, including flat foot. It was also pointed out that she
had earlier been found medically fit for appointment as Sub Inspector
in 2016, but could not qualify on merits in the examination. She also
relied on reports from the Dr. Ram Manohar Lohia Hospital73 and
Deen Dayal Upadhyay Hospital74, New Delhi, where she had been
examined by orthopaedists who had not found her to be suffering from
flat foot. This Court summoned the records of the JLN Hospital and
found that Nisha had indeed not been found to be suffering from flat72
“the JLN Hospital”, hereinafter
73
“the RML Hospital”, hereinafter
74
“the DDU Hospital”, hereinafter
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 42 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
foot by the said Hospital. Despite this, it was noted that the RME had
noted, in her case, “clinically flat foot present”.
10.30 In these circumstances, this Court, while acknowledging that
the report of the JLN Hospital might not have been binding on the
RME, held that as Nisha had been referred to the JLN Hospital by the
respondents themselves, and the opinion of the JLN Hospital was in
her favour, which also was in sync with the reports of the RML
Hospital and the DDU Hospital, the case was fit for a re-examination
of Nisha, for which she was refer to the Army Research and Referral
Hospital. The writ petition was, therefore, allowed to that extent.
10.31 Himanshu Bansal, though also a case in which the petitioner
had been declared unfit in the DME and the RME as suffering from
defective distant vision in his right eye, cannot be regarded as of any
binding precedential value, as this Court, apparently ex debito justitiae
and keeping in mind the fact that he belonged to the Other Backward
Classes, directed the respondents to re-examine the petitioner
Himanshu Bansal, specifically stating that it was not “commenting on
the merits of the case”.
10.32 The relevant extract from the decision in Vijender Singh
already stands reproduced in the extracted the portion from the
judgment of the learned Tribunal in Teekam Singh Meena, which
forms the mainstay of the impugned orders. It is not necessary,
therefore, to refer to the decision in Vijender Singh in any particular
detail. Suffice it to state, however, that this Court was, in that case,
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 43 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
also concerned with a writ petition challenging the decision of the
learned Tribunal, in the case of recruitment to the Delhi Police, and of
a candidate who had been found suffering from cubitus valgus by the
DME and the RME. This Court specifically refused to interfere with
the decision of the learned Tribunal, rejecting the petitioner’s prayer
for constitution of a fresh medical Board.
10.33 In Prashan Kumar, the petitioner Prashan Kumar had been
disqualified from recruitment to the Central Armed Police Forces as
suffering from hypertension and haemorrhoids, both in the DME and
the RME. The Division Bench, which was petitioned by Prashan
Kumar, found that the applicable “Guidelines for review in medical
examination in Central Armed Police Forces” prescribed that, before
rejecting a candidate on the ground of hypertension, she, or he, was
required to have been admitted/hospitalised by the Review Medical
Board, and that the report of hospitalisation was required to indicate
whether the rise in blood pressure was only transient or attributable to
an organic disease. He further required, in such cases, x-ray,
electrocardiographic examination and blood examinations such as
cholesterol, lipid profile, serum creatinine, etc., to be undertaken. In
the case of haemorrhoids, the Guidelines disqualified candidates only
if they were suffering from haemorrhoids with evidence of bleeding.
As the RME had not followed these guidelines, this Court held its
report to be unacceptable and, accordingly, set it aside. The
respondents were directed to constitute a fresh Review Medical
Board, which would examine the petitioner Prashan Kumar in
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 44 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
accordance with the applicable Guidelines. The writ petition was,
therefore, allowed.
10.34 This decision, therefore, clearly holds that strict adherence to
the applicable Guidelines governing Medical Examination, where
such Guidelines exist, is mandatory, and deviation therefrom would
render the report of the Medical Examination to be unacceptable in
law, justifying direction for a fresh medical examination.
10.35 The petitioner75 in Satender Kumar Yadav was disqualified
from joining a Short Service Commission in the Indian Army on the
ground of medical and fitness, as he was found to have a
hyperpigmentation lesion on the chest. The Special Medical Board76
and the Appeal Medical Board77 were concurrent on the issue.
Relying on an opinion from a skin specialist in a private medical
college, Satender petitioned this Court, praying that his case be
referred to a Review Medical Board78 . This Court rejected the prayer.
It was noted, inter alia, that “abnormal pigmentation in the form of
hypo or hyperpigmentation” was specifically stipulated as “not
acceptable” in the Guidelines contained in the applicable Manual on
Medical Examination. Besides, the Court noted that there were
specialised experts both in the SMB and the AMB, who had
concurrently opined that Satender had a hyperpigmentation lesion on
his chest and was, therefore, medically unfit for Short Service
Commission. This Court, it was observed, could not sit in appeal over
75
“Satender” hereinafter
76
“SMB” hereinafter
77
“AMB” hereinafter
78
“RMB” hereinafter
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 45 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
the decision, in the absence of any charge of bias, mala fides or
arbitrariness. In these circumstances, the opinion from the external
skin specialist was found to be of no avail. The petitioner was
therefore dismissed.
10.36 The inbuilt proscription against judicial interference, where
specialists in the field had rendered medical opinions disqualifying the
concerned candidate, therefore, stands underscored in this decision.
Besides, if, in the prescribed guidelines, a particular pathological
condition is specified as rendering the candidate unfit for recruitment,
the Court cannot hold otherwise.
10.37 The last decision which requires to be noted, rendered by the
same Bench which rendered Satender Kumar Yadav, is Shailly
Upadhyay, delivered four days after Satender Kumar Yadav. It is not
necessary to advert, in any detail, to the said decision, as it follows
Satender Kumar Yadav, and the only distinguishing feature between
the two decisions is the ailment from which the candidate suffered, the
petitioner in Shailly Upadhyay having been disqualified on the
ground of “malunited left clavicle shaft fracture with dropping of left
shoulder”. As in Satender Kumar Yadav, this was a specified
disqualifying ailment, and the petitioner had been concurrently found
to be suffering from it by the DME and the RME, both of which were
conducted by panels involving experts in the field.
The applicable principles
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 46 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
10.38 In our considered opinion, the following principles would
apply:
(i) The principles that apply in the case of recruitment to
disciplined Forces, involved with safety and security, internal
and external, such as the Armed and Paramilitary Forces, or the
Police, are distinct and different from those which apply to
normal civilian recruitment. The standards of fitness, and the
rigour of the examination to be conducted, are undoubtedly
higher and stricter.
(ii) There is no absolute proscription against judicial review
of, or of judicial interference with, decisions of Medical Boards
or Review Medical Boards. In appropriate cases, the Court can
interfere.
(iii) The general principle is, however, undoubtedly one of
circumspection. The Court is to remain mindful of the fact that
it is not peopled either with persons having intricate medical
knowledge, or were aware of the needs of the Force to which
the concerned candidate seeks entry. There is an irrebuttable
presumption that judges are not medical men or persons
conversant with the intricacies of medicine, therapeutics or
medical conditions. They must, therefore, defer to the decisions
of the authorities in that regard, specifically of the Medical
Boards which may have assessed the candidate. The function
of the Court can only, therefore, be to examine whether the
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 47 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
manner in which the candidate was assessed by the Medical
Boards, and the conclusion which the Medical Boards have
arrived, inspires confidence, or transgresses any established
norm of law, procedure or fair play. If it does not, the Court
cannot itself examine the material on record to come to a
conclusion as to whether the candidate does, or does not, suffer
from the concerned ailment, as that would amount to sitting in
appeal over the decision of the Medical Boards, which is not
permissible in law.
(iv) The situations in which a Court can legitimately interfere
with the final outcome of the examination of the candidate by
the Medical Board or the Review Medical Board are limited,
but well-defined. Some of these may be enumerated as under:
(a) A breach of the prescribed procedure that is
required to be followed during examination constitutes a
legitimate ground for interference. If the examination of
the candidate has not taken place in the manner in which
the applicable Guidelines or prescribed procedure
requires it to be undertaken, the examination, and its
results, would ipso facto stand vitiated.7979
This follows from the well-established principle, enunciated in Taylor v Taylor, (1875) 1 Ch D 426 and
subsequently followed by the Privy Council in Nazir Ahmed v King Emperor, AIR 1936 PC 253 and by
the Supreme Court in a catena of cases including State of UP v Singhara Singh, AIR 1964 SC 358 that,
where the statute, or the law, requires an act to be done in a particular manner, that act has to be done in that
manner alone and in no other, all other modes of doing the act being necessarily forbidden.
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 48 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
(b) If there is a notable discrepancy between the
findings of the DME and the RME, or the Appellate
Medical Board, interference may be justified. In this, the
Court has to be conscious of what constitutes a
“discrepancy”. A situation in which, for example, the
DME finds the candidate to be suffering from three
medical conditions, whereas the RME, or the Appellate
Medical Board, finds the candidate to be suffering only
from one of the said three conditions, would not
constitute a discrepancy, so long as the candidate is
disqualified because of the presence of the condition
concurrently found by the DME and the RME or the
Appellate Medical Board. This is because, insofar as the
existence of the said condition is concerned, there is
concurrence and uniformity of opinion between the DME
and the RME, or the Appellate Medical Board. In such a
circumstance, the Court would ordinarily accept that the
candidate suffered from the said condition. Thereafter, as
the issue of whether the said condition is sufficient to
justify exclusion of the candidate from the Force is not an
aspect which would concern the Court, the candidate’s
petition would have to be rejected.
(c) If the condition is one which requires a specialist
opinion, and there is no specialist on the Boards which
have examined the candidate, a case for interference is
made out. In this, however, the Court must be satisfied
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 49 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
that the condition is one which requires examination by a
specialist. One may differentiate, for example, the
existence of a haemorrhoid or a skin lesion which is
apparent to any doctor who sees the candidate, with an
internal orthopaedic deformity, which may require
radiographic examination and analysis, or an
ophthalmological impairment. Where the existence of a
medical condition which ordinarily would require a
specialist for assessment is certified only by Medical
Boards which do not include any such specialist, the
Court would be justified in directing a fresh examination
of the candidate by a specialist, or a Board which
includes a specialist. This would be all the more so if the
candidate has himself contacted a specialist who has
opined in his favour.
(d) Where the Medical Board, be it the DME or the
RME or the Appellate Medical Board, itself refers the
candidate to a specialist or to another hospital or doctor
for opinion, even if the said opinion is not binding, the
Medical Board is to provide reasons for disregarding the
opinion and holding contrary to it. If, therefore, on the
aspect of whether the candidate does, or does not, suffer
from a particular ailment, the respondents themselves
refer the candidate to another doctor or hospital, and the
opinion of the said doctor or hospital is in the candidate’s
favour, then, if the Medical Board, without providing any
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 50 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
reasons for not accepting the verdict of the said doctor or
hospital, nonetheless disqualifies the candidate, a case for
interference is made out.
(e) Similarly, if the Medical Board requisitions
specialist investigations such as radiographic or
ultrasonological tests, the results of the said tests cannot
be ignored by the Medical Board. If it does so, a case for
interference is made out.
(f) If there are applicable Guidelines, Rules or
Regulations governing the manner in which Medical
Examination of the candidate is required to be conducted,
then, if the DME or the RME breaches the stipulated
protocol, a clear case for interference is made out.
(v) Opinions of private, or even government, hospitals,
obtained by the concerned candidate, cannot constitute a
legitimate basis for referring the case for re-examination. At
the same time, if the condition is such as require a specialist’s
view, and the Medical Board and Review Medical Board do not
include such specialists, then the Court may be justified in
directing the candidate to be re-examined by a specialist or by a
Medical Board which includes a specialist. In passing such a
direction, the Court may legitimately place reliance on the
opinion of such a specialist, even if privately obtained by the
candidate. It is reiterated, however, that, if the Medical Board
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 51 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
or the Review Medical Board consists of doctors who are
sufficiently equipped and qualified to pronounce on the
candidate’s condition, then an outside medical opinion obtained
by the candidate of his own volition, even if favourable to him
and contrary to the findings of the DME or the RME, would not
justify referring the candidate for a fresh medical examination.
(vi) The aspect of “curability” assumes significance in many
cases. Certain medical conditions may be curable. The Court
has to be cautious in dealing with such cases. If the condition is
itself specified, in the applicable Rules or Guidelines, as one
which, by its very existence, renders the candidate unfit, the
Court may discredit the aspect of curability. If there is no such
stipulation, and the condition is curable with treatment, then,
depending on the facts of the case, the Court may opine that the
Review Medical Board ought to have given the candidate a
chance to have his condition treated and cured. That cannot,
however, be undertaken by the Court of its own volition, as a
Court cannot hazard a medical opinion regarding curability, or
the advisability of allowing the candidate a chance to cure the
ailment. Such a decision can be taken only if there is
authoritative medical opinion, from a source to which the
respondents themselves have sought opinion or referred the
candidate, that the condition is curable with treatment. In such
a case, if there is no binding time frame within which the
Review Medical Board is to pronounce its decision on the
candidate’s fitness, the Court may, in a given case, direct a
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 52 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
fresh examination of the candidate after she, or he, has been
afforded an opportunity to remedy her, or his, condition. It has
to be remembered that the provision for a Review Medical
Board is not envisaged as a chance for unfit candidates to make
themselves fit, but only to verify the correctness of the decision
of the initial Medical Board which assessed the candidate.
(vii) The extent of judicial review has, at all times, to be
restricted to the medical examination of the candidate
concerned. The Court is completely proscribed even from
observing, much less opining, that the medical disability from
which the candidate may be suffering is not such as would
interfere with the discharge, by her, or him, of her, or his, duties
as a member of the concerned Force. The suitability of the
candidates to function as a member of the Force, given the
medical condition from which the candidate suffers, has to be
entirely left to the members of the Force to assess the candidate,
as they alone are aware of the nature of the work that the
candidate, if appointed, would have to undertake, and the
capacity of the candidates to undertake the said work. In other
words, once the Court finds that the decision that the candidate
concerned suffers from a particular ailment does not merit
judicial interference, the matter must rest there. The Court
cannot proceed one step further and examine whether the
ailment is such as would render the candidate unfit for
appointment as a member of the concerned Force.
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 53 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
10.39 There is another aspect of the matter, which cannot be ignored.
Unlike most of the cases which were decided by the judgments of the
Division Benches of this Court, cited supra, we are not exercising first
instance jurisdiction in these writ petitions. We are sitting in
certiorari over decisions rendered by the learned Tribunal. The
parameters of certiorari jurisdiction are more circumscribed than the
parameters of extraordinary original writ jurisdiction exercised by the
Court. The peripheries of certiorari jurisdiction stand well delineated
by the following classic passage from the decision in Syed Yakoob v
K.S. Radhakrishnan80:
“7. The question about the limits of the jurisdiction of High
Courts in issuing a writ of certiorari under Article 226 has been
frequently considered by this Court and the true legal position in
that behalf is no longer in doubt. A writ of certiorari can be issued
for correcting errors of jurisdiction committed by inferior courts
or tribunals: these are cases where orders are passed by inferior
courts or tribunals without jurisdiction, or is in excess of it, or as a
result of failure to exercise jurisdiction. A writ can similarly be
issued where in exercise of jurisdiction conferred on it, the Court
or Tribunal acts illegally or in properly, as for instance, it decides
a question without giving an opportunity to be heard, to the party
affected by the order, or where the procedure adopted in dealing
with the dispute is opposed to principles of natural justice. There
is, however, no doubt that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and the Court exercising it
is not entitled to act as an Appellate Court. This limitation
necessarily means that findings of fact reached by the inferior
Court or Tribunal as result of the appreciation of evidence cannot
be reopened or questioned in writ proceedings. An error of law
which is apparent on the face of the record can be corrected by a
writ, but not an error of fact, however grave it may appear to be.
In regard to finding of fact recorded by the Tribunal, a writ of
certiorari can be issued if it is shown that in recording the said
finding, the Tribunal had erroneously refused to admit admissible
and material evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding. Similarly, if a
finding of fact is based on no evidence, that would be regarded as80
AIR 1964 SC 477
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 54 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
an error of law which can be corrected by a writ of certiorari. In
dealing with this category of cases, however, we must always bear
in mind that a finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on the ground
that the relevant and material evidence adduced before the
Tribunal was insufficient or inadequate to sustain the impugned
finding. The adequacy or sufficiency of evidence led on a point and
the inference of fact to be drawn from the said finding are within
the exclusive jurisdiction of the Tribunal, and the said points
cannot be agitated before a writ Court. It is within these limits that
the jurisdiction conferred on the High Courts under Article 226 to
issue a writ of certiorari can be legitimately exercised.
8. It is, of course, not easy to define or adequately describe
what an error of law apparent on the face of the record means.
What can be corrected by a writ has to be an error of law; it must
be such an error of law as can be regarded as one which is
apparent on the face of the record. Where it is manifest or clear
that the conclusion of law recorded by an inferior Court or
Tribunal is based on an obvious mis-interpretation of the relevant
statutory provision, or sometimes in ignorance of it, or may be,
even in disregard of it, or is expressly founded on reasons which
are wrong in law, the said conclusion can be corrected by a writ of
certiorari. In all these cases, the impugned conclusion should be so
plainly inconsistent with the relevant statutory provision that no
difficulty is experienced by the High Court in holding that the said
error of law is apparent on the face of the record. It may also be
that in some cases, the impugned error of law may not be obvious
or patent on the face of the record as such and the Court may need
an argument to discover the said error; but there can be no doubt
that what can be corrected by a writ of certiorari is an error of law
and the said error must, on the whole, be of such a character as
would satisfy the test that it is an error of law apparent on the face
of the record. If a statutory provision is reasonably capable of two
constructions and one construction has been adopted by the
inferior Court or Tribunal, its conclusion may not necessarily or
always be open to correction by a writ of certiorari. In our
opinion, it neither possible nor desirable to attempt either to define
or to describe adequately all cases of errors which can be
appropriately described as errors of law apparent on the face of
the record. Whether or not an impugned error is an error of law
and an error of law which is apparent on the face of the record,
must always depend upon the facts and circumstances of each case
and upon the nature and scope of the legal provision which is
alleged to have been misconducted or contravened.”
(Emphasis supplied)
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 55 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
In applying the principles enunciated in the judgments cited supra, to
the orders of the learned Tribunal under challenge before us in this
batch of writ petitions, we, therefore, have to be conscious of the
limitations of our jurisdiction. It is only if the decision of the learned
Tribunal is one which merits interference within the peripheries of
certiorari jurisdiction as defined in the afore extracted paras from K.S.
Radhakrishnan, that we will interfere. If the decision of the learned
Tribunal is one which it is plausible to take in the circumstances of the
case, we would not interfere merely because we might not have acted
the same way, or might have decided the case differently.
Application of the above principles to the individual writ petitions
WP (C) 13821/2024 (SSC v Aman Singh)
11. In this case, the candidate suffered from haemorrhoids. There is
concurrence of opinion between the DME and RME regarding the
existence of a haemorrhoid, though the DME stated that the candidate
had an internal haemorrhoid whereas the RME merely stated that the
candidate had a haemorrhoid. It is not as though, therefore, the
opinions of the DME and RME were essentially different because
both certified that the respondent was suffering from haemorrhoid.
12. Be it noted, the case is not one in which the DME opined that
the respondent had an internal haemorrhoid whereas the RME
certified that he had an external haemorrhoid. Had that been the case,
perhaps interference might have been justified.
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 56 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
13. The existence, or otherwise, of haemorrhoids is not a condition
which requires an expert medical opinion. Haemorrhoids are visible
to the naked eye. Even if no specialist had seen the respondent, we are
of the opinion that as there is concurrence of medical opinion between
the DME and RME with respect to the existence of a haemorrhoid,
and the respondent has been found unfit for joining the service in
Delhi Police on that ground, the learned Tribunal ought not to have
referred the matter to a fresh medical opinion.
14. Though the respondent has placed on record medical reports
stating that he had no haemorrhoids, these reports were not from the
hospitals to which he had been referred either by the DME or the
RME. These reports were from the hospital which the respondent
himself had approached. Such reports cannot be the basis to discredit
the opinion of the DME and RME, in view of the decision of the
Division Bench of this Court in Priyanka.
15. We cannot certify as to whether the existence of a haemorrhoid
itself would, or would not, be sufficient as a ground not to appoint a
person to the Delhi Police. That is an aspect on which we must defer
to the decision of the petitioners.
16. We, therefore, set aside the order of the learned Tribunal insofar
as it directs reference of the case of the respondent to a third medical
board.
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 57 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
17. The writ petition stands allowed in the aforesaid terms.
WP (C) 13748/2024 [SSC v Deepak]
18. The DME, in this case, certified the respondent Deepak as unfit
for appointment on account of (i) elbow varus deformity, (ii)
hypertension and (iii) chronic skin infection over buttock”. The RME
did not find any evidence of infirmities (i) and (iii), but disqualified
the respondent from appointment on account of (i) hypertension and
(ii) trace TR81, found on carrying out 2D echocardiogram. There is,
therefore, in this case, clear dissonance between the findings of the
DME and the RME. The only grounds on which the respondent
Deepak was ultimately found unfit for appointment were hypertension
and trace TR. The two other infirmities noted in the DME, of elbow
deformity and skin infection over the buttock, were not found in the
RME. They, therefore, are not of consequence, as they have not
operated to disqualify the respondent from appointment. The finding
of trace TR figured only in the report of the RME. If this finding were
ignored, it may be arguable as to whether, solely on account of
hypertension, the respondent would have been regarded as unfit for
appointment.
19. As in this case, there is a difference of opinion between the
DME and the RME with respect to the existence of regurgitation and
TR, we do not find it to be a fit case for interference with the decision
of the learned Tribunal to refer the matter to a third Medical Board for
81
Tricuspid Valve Regurgitation
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 58 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
a fresh medical examination.
20. We especially say so, because the respondent was found unfit
for service not because he was merely suffering from hypertension but
on the ground that he was suffering from hypertension along with TR.
In the event that the finding of TR is not upheld by the Third Medical
Board, it would have to be then examined whether, merely on the
ground of hypertension, the respondent can be disqualified. We
express no opinion thereon.
21. With the above comments, we uphold the decision of the
learned Tribunal and dismiss this writ petition.
WP (C) 13717/2024 [SSC v Vatan Singh]
22. In this case, the respondent was found, by the DME, to be unfit
for recruitment on account of “varicocele (L) sided”. The Review
Medical Board referred him to Baba Saheb Ambedkar Hospital for
opinion and a USG scrotum regarding the left varicocele, specifically
stating that it was for recruitment. The opening recital in the
prescription of the BSA Hospital reads “Refd from BS Hospital for
opinion and USG Scrotum (Lt Vericocele) for recruitment RME”.
The BSA hospital, in its report, opined that though the respondent had
bilateral vericocele, he “may require surgical intervention” (for
fitness)”.
23. The said opinion was rendered on 27 January 2024. A mere two
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 59 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
days thereafter, on 29 January 2024, the Review Medical Board
declared him unfit for appointment with the following remarks:
“1) Reason for Medical Unfitness: Varicocele (L) sided
2) Brief of Review Medical Examination & finding thereof:
Specialist opinion- B/L Varicocele present.
USG scrotum-B/L varicocele largest
diameter 43 cm rt.
39 cm lt side.
Requires surg- intervention for fitness
3) Final Opinion
(b) Unfit on account of: UNFIT B/L Varicocele”
24. In the present case, the DMB, which convened on 19 January
2024, found the respondent to be suffering from varicocele. The
Review Medical Board, eight days later, on 27 January 2024, referred
the respondent to the BSA hospital for opinion, specifically stating
that it was “for recruitment”. Once such a reference was made, the
Review Medical Board could not merely brush the opinion of the
hospital to which the respondent had been referred under the carpet.
The hospital, on the very same day, opined that, if the respondent
underwent surgical intervention, he may have been fit for
appointment.
25. Instead of waiting for the respondent to undergo surgical
intervention and correct his condition, the RME, a mere two days
thereafter, on 29 January 2024, rejected the respondent’s candidature,
ironically noting, even while doing so, that the respondent required
surgical intervention for fitness.
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 60 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
26. If this decision of the Review Medical Board were to be
accepted, it would render the very purpose of referring the respondent
to the BSA hospital for opinion regarding his entitlement for
recruitment completely redundant and an exercise in futility.
27. The respondent claims to have undergone a surgery and that he
is now fit for appointment. Unlike the situation which obtained in
Rockey, the petitioner has not drawn our attention to any instruction or
guideline which mandated only requires the RME to be conducted
within a stipulated number of days of the DME. We are of the view,
therefore, that the respondent ought to have been allowed to undergo
surgery and attempt to correct his condition, especially as the BSA
Hospital, to which the Review Medical Board itself referred his case,
opined that, with surgery, he would become fit for appointment.
28. Now that the respondent claims to have undergone surgery, we
are of the opinion that a fresh assessment of his medical condition, and
his fitness for recruitment as a Constable, would eminently serve the
interests of justice.
29. In the peculiar facts of this case, therefore, we do not find any
reason to interfere with the decision of the learned Tribunal in exercise
of our jurisdiction under Article 226 of the Constitution of India.
30. The writ petition is accordingly dismissed.
WP (C) 13762/2024 [SSC v Kuldeep]
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 61 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
31. The DME, in this case, found the respondent Kuldeep unfit for
appointment as a Constable on account of “generalised fungal
infection over whole body”. The Review Medical Board referred him
for specialist opinion, as per the Recruitment Guidelines, to the Felix
Hospital. The OPD card in the Felix Hospital, dated 23 January 2024,
reads:
“Candidate for CT/GD Recruitment Delhi Police.
Reason for UNFIT in DME (1) Generalised fungal infection over
body.
Refer to Dermatology OPD for specialist opinion as per
recruitment guidelines.”
The Consultant Dermatologist in the Felix Hospital examined the
respondent. He prescribed certain tablets and creams, and that the
respondent was to take bath twice or thrice a day with Softeren soap
and water. In conclusion, the prescription opined that the respondent
was “medically fit from dermatology side for duties”. He was asked
to report for review after 2 weeks.
32. As in the case of WP (C) 13717/2024, the Review Medical
Board, without even waiting for the respondent Kuldeep to undertake
the recommended treatment, convened the very next day, i.e. on 24
January 2024, and declared him unfit for appointment on account of
extensive tinea cruris (fungal infection).
33. In this case, from the facts, it becomes apparent that there was
no dermatologist either in the DME or in the RME. Generalized
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 62 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
fungal infection over the body is not a routine medical condition
regarding which an opinion can be rendered by an ordinary medical
practitioner. This is why, in fact, the Review Medical Board itself
referred the matter to a Dermatology OPD for specialist opinion as per
the Recruitment Guidelines on 23 January 2024 specifically stating
that the candidate was being examined for recruitment in the Delhi
Police. The Hospital to which the Review Medical Board had referred
the case, inter alia opined that the “respondent was medically fit from
Dermatology side for duties” and suggested certain therapeutic
remedies to alleviate the respondent’s condition. On the very next
date, the Review Medical Board disqualified the respondent, on the
ground that he had Tinea Cruris (Extensive).
34. We feel the direction, for a fresh medical examination of the
respondent to be justified in the present case, for the following
reasons:
(i) It is obvious that there was no specialist either in the
DME or in the RME; else no occasion would have arisen to
refer the matter for a specialist opinion. In fact the reference
was specifically made as per the applicable Recruitment
Guidelines which required the opinion of the specialist to be
obtained, where the condition from which the candidate was
found to be suffering required such an opinion.
(ii) The reference to the Dermatologist for opinion was
specifically made by the Review Medical Board. This,
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 63 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
therefore, is not a case in which the respondent suo motu
obtained the opinion of a private hospital.
(iii) While referring the case, the Review Medical Board
stated that the reference was made for CT/GD82 recruitment of
Delhi Police and required the opinion of a Dermatologist as per
the Recruitment Guidelines.
(iv) The Dermatologist to whom the Review Medical Board
had referred the case found the respondent, though suffering
from Tinea Cruris (Extensive), to be “medically fit from
Dermatologist side for duties” and suggested certain therapeutic
remedies to be taken by the respondent, which review was to be
undertaken after two weeks.
(v) The decision of the Review Medical Board which was
taken the very next day merely notes the opinion of the
Dermatologist as “S/O. Tinea Cruris (Extensive)”, omitting to
note that the Dermatologist has separately certified that the
respondent was “medically fit from Dermatology side for
duties”, thereby indicating that the Review Medical Board had
not holistically seen the opinion of the Dermatologist.
(viii) At the very least, in these circumstances, in the absence
of any binding Guidelines or instruction requiring the RME to
return a finding in a time bound frame, the respondent ought to82
Constable/General Duty
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 64 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
have been allowed to undertake the therapy suggested by the
dermatologist, before assessing his fitness for recruitment.
Needless to say, this would not mean that the RME would have
to be indefinitely postponed, awaiting the recovery of the
respondent. However, as the dermatologist, to whom the
respondent had been referred by the Review Medical Board
itself, had certified that he was dermatologically fit for duties, if
the Review Medical Board felt otherwise, there had to be some
reason for it to do so, and that reason had to be forthcoming in
its decision.
(ix) It has to be borne in mind that the reference to the
dermatologist was not made by the Review Medical Board de
hors any guidelines, but was as per the Recruitment Guidelines
governing recruitment to the post of Constable. In that view of
the matter, the Review Medical Board could not blindly ignore
the opinion of the dermatologist. The dermatologist specifically
found the respondent to be “medically fit from dermatology
side for duties”. Inasmuch as the reference had been made as
per the Recruitment Guidelines, this opinion could not have
been blindly ignored. If this were permitted, the stipulation, in
the Recruitment Guidelines, for reference of the candidate to a
specialist in appropriate cases, would be reduced to a
redundancy.
(x) In fact, it appears that the Review Medical Board, in the
present case, overlooked the specific opinion, by the
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 65 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14
dermatologist at the Felix Hospital, that the respondent was
medically fit for duties. There is no reference to the said
opinion in the final decision of the Review Medical Board.
Even on the ground of failure to take cognizance of the material
before it, therefore, the decision of the Review Medical Board
would be vulnerable to interference.
35. In these circumstances, we concur with the decision of the
learned Tribunal to refer the matter to fresh Medical Board for
examination, but for our own reasons, elucidated supra.
36. The petition is therefore dismissed.
C. HARI SHANKAR, J.
DR. SUDHIR KUMAR JAIN, J.
OCTOBER 24, 2024/dsn/yg
Click here to check corrigendum, if any
Signature Not Verified
WP(C) 13821/2024 & connected matters Page 66 of 66
Digitally Signed
By:AJIT KUMAR
Signing
Date:02.11.2024 22:14