Vishvanath Balasaheb Nagare vs The Union Of India Through The ...
2021 Latest Caselaw 11647 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                   WRIT PETITION NO.975 OF 2021

Vishvanath Balasaheb Nagare                           .... Petitioner
          Versus
The Union of India and others                         .... Respondents
                                  ....
Ms. Linet Nadar, Advocate a/w. Ms. Annie Nadar, Advocate for the
Petitioner.
Ms. S.V. Bharucha, Advocate a/w. Mr. Dhanesh Shah and Mr. A.A. Ansari,
for the Respondents.
                                  ....

                      CORAM : SMT SADHANA S. JADHAV &
                              SARANG V. KOTWAL, JJ.

DATE : 24th AUGUST, 2021

JUDGMENT: (Per: Smt. Sadhana S. Jadhav, J.)

1. Heard learned Counsel for the parties.

2. Rule. Rule made returnable forthwith and the Petition is

taken up for final disposal.

3. On 21.7.2018, the Staff Selection Commission had issued

a notice inviting applications for an open examination for

recruitment to the posts of Constable (General Duty) in various

Forces of the Central Armed Police Force (for short, 'CAPF').

4. Pursuant to the said notice, the petitioner herein had filed

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an on-line application on 2.9.2018. He had qualified in the physical

tests and had secured marks above the cut-off marks. After

preliminary selection, the petitioner appeared before the Medical

Board on 23.1.2020. He was diagnosed by the CAPF with '2 nd toe

deformity in both feet.'

5. There is a provision for Review Medical Examination, in

the eventuality the candidate is not satisfied by the preliminary

reports. The scheme of examination is contemplated in the notice

issued by Staff Selection Commission for the post of Constables

(GD) in Central Armed Police Forces (CAPFs), NIA & SSF and

Rifleman (GD) in Assam Rifles (AR) Examination, 2018. Item 9E of

the said notice reads thus :

"9. SCHEME OF EXAMINATION :

E. Review medical examination (RME): Ordinarily there is no right of appeal against the findings of the Recruiting Medical Officer or Initial Medical Examination. If any Medical Certificate is produced by a candidate as a piece of evidence about the possibility of an error of judgment in the decision of Initial Medical Board/ Recruiting Medical Officer, who had examined him/her in the first instance i.e. DME, an appeal can be accepted. Such Medical Certificate will not be taken into consideration unless it contains a note by the Medical

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Officer from Government District Hospital or above along with registration no. given by MCI/ State Medical Council, to the effect that it has been given in full knowledge of the fact that the candidate has already been rejected and declared unfit for service by CAPF Medical Board, or the recruiting medical officer. If the appeal of a candidate is accepted by CAPF Appellate Authority, his/ her Review Medical Examination will be conducted by CAPF RME Board. The Decision of the CAPE'S Review Medical Boards will be final. No appeal will be entertained against the finding of the second medical i.e. Review Medical Examination.

6. In compliance with the same, the petitioner had then

approached the District Hospital at Nashik and was examined by the

Civil Surgeon. The opinion of the Orthopedic Surgeon at District

Hospital, Nashik is that the petitioner "is having second toe

deformity of the right foot." It is specifically opined that "only right

2nd toe with Hallux Valgus with normal range and muscular

support."

7. The petitioner had once again prayed to the CAPF for

review and had appeared before the Review Medical Board. The

Review Medical Board had given its opinion on 12.10.2020 and has

opined as follows :

"b) UNFIT on account of : Medial deviation of proximal and

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middle phalynges of 2nd toe B/L. Bony deformity of 2nd toe- both feet."

8. The opinion given below the X-ray report on perusal of the

X-ray is thus :

" There is lateral deviation of the terminal phalanx of the 2 nd bilaterally at the Distal Interphalangeal joint. . There is medial deviation of the proximal and middle phalyang of the 2nd toes bilaterally.

. The rest of the minalered bones are normal in contour, desire and alignment.

. Rest of the joint spaces are normal.

. Soft tissues are normal (Noted: Bursal/soft tissue evlageretour and mallows.

Imp : Deformity of both 2nd toes (bilaterally) as above."

9. The respondent herein has filed affidavit-in-reply and has

stated vehemently that a person having Hallux Valgus is unable to

run in times of emergency or wear the combat shoes.

10. Per contra, learned counsel for the petitioner has drawn

our attention to the physical standard test and efficiency test

conducted by CAPF, which shows that the petitioner had completed

the running of 5 Kms in 24 minutes and was qualified at that stage.

11. We have gone through the papers. The petitioner had also

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obtained a certificate from a specialist in the field i.e. an Orthopedic

Surgeon from Borade Accident Hospital on 22.12.2020 and the

opinion of Borade Accident Hospital is as follows :

"This is to certify that Shri Vishvanath B. Nagare, age 26 years is examined by me today and found to be having B/I feet IInd toe deformity with valgus with normal range of movement."

12. With the help of both the Counsel, we have gone through

the Guidelines specified by the Staff Selection Commission for

holding a candidate eligible for the post for which he has applied

and more specifically when he is initially declared unfit and prays

for review. These are the Guidelines for Review Medical

Examination. The Guidelines for Review Medical Boards are as

follows :

Guidelines for Review Medical Boards:-

1. Review Medical Board should examine the candidate specifically for the deficiency for which the candidate has been declared unfit. However for obvious defects/intirmities contracted after Initial Medical Examination, Review Medical Board may give its opinion. Also, the medical term used as cause of unfitness during the Initial Medical Examination may differ from that arrived at by the Review Medical Board after due investigations and specialist consultation.

2. For the defect for which candidate has been

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declared unfit should be examined thoroughly and the findings must be got supported by proper investigation reports if applicable.

Review Medical Board may get opinion of concerned specialists or super specialists of Govt. Medical College and Hospital in case of any controversy. It must be kept in mind that a specialist medical officer of concerned field has certified that the candidate is not suffering from the disease for which he has been rejected, making the decision of the earlier Medical Board controversial. Therefore, in cases of rejection in review medical examination, clinical findings should be corroborated with confirmatory tests/investigations/opinion of specialists/ super specialists of Govt. Hospitals/Medical Colloges/Govt. approved private medical centers, whichever and wherever applicable."

13. In view of these Guidelines, learned counsel for the

petitioner has submitted that upon finding said deformity, the

petitioner was not referred to any Orthopedic Surgeon by the CAPF.

No Orthopedic Surgeon was included in the Medical Board. It has

been specifically stated in the Rules that in cases of rejection in

review medical examination, clinical findings should be

corroborated with confirmatory tests/ investigations /opinion of

specialists / super specialists of Govt. Hospitals / Medical Colleges/

Govt. approved private medical centers, whichever and wherever

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applicable.

14. It is clear that the Guidelines are not followed by the CAPF.

No reasons were assigned to declare the petitioner as unfit for the

post. In fact, there are General Instructions for Recruitment Board.

Clause 2(a) of the General Instructions is as follows :

"2. GENERAL INSTRUCTIONS FOR RECRUITMENT BOARD

a) The recruiting medical officer, while conducting medical examination of a candidate, if finding the candidate to be unfit, would record the parameter with reference where-to unfit has been opined. A reference would be made to the requisite standards prescribed or known to be prescribed and accepted as such by the experts in the field. This particular instruction should be strictly adhered to. For example, in case of unfitness due to tachycardia, it should be written as pulse rate 110/ min (Normal range-60 to 100 / min) or carrying angle 18° (Normal range- 10° to 15°)."

. It is specified that the particular instruction should be

strictly adhered to, which makes the instructions mandatory. The

mandate has not been followed. As per clause 2(b) of the General

Instructions, the case of rejection has not been supported with

reference to its location, size, side of the body and other parameters

as per applicability. (emphasis supplied)

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15. The learned counsel for the petitioner has referred to the

Office Memorandum dated 20.5.20215 with reference to revised

uniform guidelines for recruitment / medical examination for

recruitment of GOs and NGOs in the CAPFs and AR. There is a

reference to Hallux Valgus. The definition of Hallux Valgus as per

the Office Memorandum is as follows :

"Hallux Valgus : it is the outer deviation of the great toe at the metatarso-phalangeal joint. Usually it is a bilateral condition. Candidates are to be disqualified, if one or all following features are present:-

i. The proximal Phalanx of the Great Toe in addition to being valgus is rotated so that its planter aspect is visible.

ii. There is a callosity on the inner aspect of the Great Toe."

16. All that is mentioned in the Guidelines is the deformation

in the great toe whereas the petitioner is diagnosed with Hallux

Valgus of the second toe of both the feet and, therefore, according to

learned counsel for the petitioner there would be no difficulty in

putting on combat shoes or running.

17. It is, therefore, clear that the CAPF has not followed the

Guidelines contemplated for the selection of the candidates by the

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Staff Selection Commission. Learned counsel has, therefore,

submitted that since the Rules and Guidelines are violated, great

injustice is caused to the petitioner, who desires to serve the nation

by rendering his services as a Constable on General Duty.

18. Per contra, learned counsel for the respondent has

vehemently submitted that in fact the person with deformation is

unfit for joining the post for which he has applied. It is not stated on

affidavit, but, on oral instructions learned counsel has submitted that

the petitioner was unable to put on his combat shoes. However, the

record would show that there is no mention of the petitioner being

unable to put on the combat shoes. Neither the petitioner was given

a notice of the same. The petitioner had completed the exercise also

within the specified time. The oral instructions cannot be considered

at this stage.

19. We have enquired with the learned counsel for the

respondent as to whether the petitioner can again be presented

before the Review Board. However, it was stated that there are no

Rules for second review, as has been stated in the affidavit. But, in

the facts of the case we find that since the CAPF has not followed

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either the Guidelines or the Rules contemplated for the selection of

the post of Constable on General Duty in the Armed Forces, there

has been violation of the principles of natural justice, and therefore

the petitioner would be entitled to a second review by the CAPF.

20. In view of this, we are of the opinion that the petitioner be

referred to the Medical Board for reviewing the clinical findings by

following the Rules stated hereinabove. The petitioner be examined

by a specialist in the field i.e. Orthopedic Surgeon and the opinion of

the Orthopedic Surgeon be taken into consideration as to whether

the petitioner would be unfit for the job for which he had applied or

whether the deformity is in the normal range; and if so, the same

can be ignored as there are certain deficiencies even as per the

Rules which cannot be considered for declaring a candidate unfit

because Clause (7) of the Office Memorandum specifies certain

minor acceptable defects.

21. Sub-clause (r) of Clause (7) specifies that the report of the

Radiologist must be clinically co-related before rejection and any

other slight defects, which in the opinion of the Recruiting Medical

Officer will not interfere with efficiency of candidate as a soldier in

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future should be ignored. The rules are supported by a foot-note

which specifies that the Recruiting Medical Officer shall fully satisfy

himself that the defect, will not in any way affect the efficiency of

candidate and the defects should invariable be mentioned in

recruitment form. That, in doubtful cases the candidates may be

referred to a specialist for examination and opinion which may

include X-ray examination or any other special investigation / test /

examination.

22. We are of the opinion that none of the guidelines are

followed. Hence, case of the petitioner is remanded to the Review

Medical Board and they shall call the petitioner for review of his

defects. The petitioner be examined by an Orthopedic Surgeon. The

PRADIPKUMAR petitioner shall be called for review within not more than eight PRAKASHRAO DESHMANE Digitally signed by weeks from today.

PRADIPKUMAR PRAKASHRAO DESHMANE Date: 2021.08.30 16:35:02 +0530

23. With these directions, the Petition is allowed. Rule is made

absolute in the above terms.

(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.)

Deshmane (PS)

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