Mr. Shridhar Mahadeo Pakhare vs Union Of India Through Secretary ...
2018 Latest Caselaw 1127 Bom

                                                          WP10026_17.doc

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION
                      WRIT PETITION NO.10026 OF 2017

Shridhar Mahadeo Pakhare
House No.38, Begar Housing Society,
Near Indira Nagar Post Office, Vijapur Road,
Solapur 413 004                                     ...        Petitioner

Vs.

1. Union of India
   through Secretary
   Ministry of Home Affairs, New Delhi.

2. Dy. Inspector of General CISF (West Zone-I),
   CISF Complex, Sector-35,
   Navi Mumbai, Kharghar 410210.

3. Sr. Medical Officer
   DME Board, CISF NISA,
   Hakimpet, Hyderabad (TS) 500078.

4. Chief Medical Officer
   RME / ME Board
   CISF / RTC Bhilai
   Post Purend, Bhilal East, Dist. Durg,
   State Chattisgarh 494 553.

5. Central Industrial Security Forces
   DIG, CISF (West Zone) CISF Complex
   Sector 35, Kharghar, Navi Mumbai 410 210.

6. President Officer
   RMEME Board, CISF RTC Bhilai                     ...        Respondents


Mr. Vijay S. Gharat for Petitioner.
Mr. Rui Rodrigues i/b. Mr. Dushyant Kumar for Respondents No.1, 2, 5 & 6.

                                     CORAM : R. M. BORDE &
                                             R. G. KETKAR, JJ.

DATE : JANUARY 30, 2018

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ORAL JUDGMENT : (PER R. M. BORDE, J.)

Heard.

2. Rule. With the consent of the parties, Petition is taken up for

final disposal at admission stage.

3. The petitioner tendered an application in response to an

advertisement issued by a Central Industrial Security Forces (C.I.S.F.)

for the post of 'constable / driver'. The petitioner was called for

interview and was found eligible for the post of 'constable / driver'. He

was referred for medical examination to the Medical Board. The

Medical Officer, who examined the petitioner, found him medically

unfit for the reason that there appeared a tattoo mark on the outer aspect

of right arm. The petitioner is challenging the medical opinion and is

also praying for issuance of directions to the respondents to consider

him eligible for the post applied for. It is pointed out by the petitioner

that in view of Note (iii) contained in the advertisement which

prescribes that the candidates having permanent tattoo on any part of the

body would be debarred for recruitment in C.I.S.F., the petitioner is not

being considered. It is further the contention of the petitioner that in fact

he made efforts to remove the tattoo by undergoing laser treatment and

the tattoo, which is located on the forearm of the petitioner has been

removed upto 90%. Thus, the petitioner is making efforts to remove it

completely. It is also contended that the tattoo in question is a religious

symbol and it, in any manner, does not interfere with the duties assigned

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to the constable or a driver. The petitioner contends that the decision

holding him unfit for employment is unreasonable and tends to interfere

with the religious sentiments of the petitioner. The petitioner contends

that the tattoo that has been carved out on the forearm, is a matter of

religious practice and the petitioner cannot be compelled to remove the

religious symbol carved out on the body. It is further contended that in

Armed Forces certain exceptions are made in respect of tattoos, which

depict religious symbol or figures and the name and similar exceptions

deserve to be made by the employers. It is further contended that Indian

Army as well as C.I.S.F. are the Disciplined Forces and the parameters,

which are applied by the Indian Army, can very well be made applicable

by C.I.S.F. The petitioner further contends that in fact the employer has

adopted discriminatory practices in holding candidates eligible for

various posts. So far as the post of Sub-Inspector in C.I.S.F. is

concerned, a Note contained in the advertisement issued in 2017 records

thus, .

"It is noticed that during medical examination, the candidates having 'tattoos' in various parts of their body are appearing for medical examination. In this regard, ministry of Home Affairs vide its letters No.I-45020/7/2012/Pers-II dated 12.01.2017 and 30.01.2017 issued the following guidelines regarding candidates having tattoos applying for SI in Delhi Police, CAPFs and CISF examination:-

(a) Content: Being a secular country, the religious sentiments of our countrymen are to be respected and thus, tattoos depicting religious symbol or figures and the name, as followed in Indian Army are to be permitted.

(b) Location: Tattoos marked on traditional sites of the body like inner aspect of forearm but only left forearm, being

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non saluting limb or dorsum of the hands are to be allowed.

(c) Size: Size must be less than ¼ of the particular part (Elbow or Hand) of the body.

The above clause is not applicable in respect of Sub-Inspector in Delhi Police for the present."

4. That so far as the post for which the petitioner tendered

application completely debars a candidate and holds him medically unfit

if any tattoo mark is found on his body, merely because the post claimed

by the petitioner is subordinate to the post of Sub-Inspector, different

parameters in respect of medical fitness cannot be applied. The

religious sentiments of a citizen shall have to be given a due weightage

and specially while making recruitment to a higher post such exceptions

are made, there was no reason for the employer to apply the same

parameters and hold the petitioner ineligible. Apart from this, there is

no dispute that the tattoo in question has been removed to the extent of

90%. It is fairly admitted by the Counsel appearing for the respondent

that petitioner is otherwise eligible to secure employment and could

have been considered except for the reason assigned by the Medical

Board.

5. In our opinion, it would not be permissible for the employer to

treat the class of employees differently and apply different parameters.

As has been recorded above, the religious sentiments of the individual

need to be respected. For the reasons recorded above, we are of the

opinion that the claim of the petitioner for employment needs to be

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considered. The petitioner is otherwise found fit by the Medical Board,

except on account of carving out the tattoo which has also been removed

admittedly to the extent of 90%. We are of the opinion that the

respondents need to be directed to consider the claim of the petitioner

for employment since he has been found otherwise fit. The Writ Petition

is thus allowed. The respondents are directed to consider the claim of

the petitioner for employment to the post of 'constable / driver' in

C.I.S.F. and the medical opinion holding the petitioner ineligible on

account of tattoo mark shall not be construed as an impediment for

issuing an order of appointment in favour of the petitioner. Rule is

accordingly made absolute. There shall be no order as to costs.

(R. G. KETKAR, J.)                                  (R. M. BORDE, J.)




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