Birendra Singh vs Union Of India & Ors.
2010 Latest Caselaw 2385 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Judgment: 04.05.2010


+                         W.P (C) 13685/2009

       BIRENDRA SINGH                                 ......Petitioner
                               Through:    Ms.Rekha Palli,
                                           Ms.Punam Singh
                                           and Ms.Amrita Prakash,
                                           Advocates.

                     Versus

       UNION OF INDIA & ORS.                       .......Respondents
                          Through:         Ms.Lata Gangwani,
                                           Advocate.


CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?                                      Yes

     2. To be referred to the Reporter or not?             Yes


     3. Whether the judgment should be reported in the Digest?
                                                          Yes


GITA MITTAL, J. (Oral)

1. The petitioner has assailed the action of the respondents in

denying him appointment to the post of Sub Inspector (Exe.) with

the Central Industrial Security Force (hereinafter referred to as

CISF) as well as the order dated 8th June, 2009 and the order of

the Review Medical board dated 19.8.2009 both holding the

petitioner medically unfit for the appointment. There is no dispute

on the material facts giving rise to the present petition and to the

extent necessary, the same are noticed hereafter.

2. The petitioner was appointed as a Constable with the CISF

on 25.08.2001. On 15.1.2005 while posted at Mumbai, the

petitioner was bitten by a snake in the official barrack. He was

taken to the nearest Government Hospital where, due to

development of gangrene in his little toe of his left foot, the same

had to be amputated. The petitioner contends that the same did

not have any impact on his physical fitness and that he continued

to efficiently discharge his duties. While at Mumbai, the petitioner

remained posted at the International Airport.

3. With effect from 1.6.2007, the petitioner was transferred and

posted with the CISF unit at the Indira Gandhi International

Airport, New Delhi. Ms.Rekha Palli, learned counsel appearing for

the petitioner points out that on account of the petitioner‟s

dedication and commitment to duty and efficient discharge

thereof, he was deputed on Commando Duty as part of the Quick

Reaction Team (QRT) at the said airport at New Delhi. The

petitioner continues to perform such duties as on date.

4. Our attention has been drawn to the notice dated 14.1.2009

whereby the respondents invited applications from eligible

departmental candidates for filling up 360 vacancies of Sub-

Inspector (Executive) in the CISF through a Limited Departmental

Competitive Examination („LDCE‟ hereinafter for brevity) against

the recruitment year of 2009. Only persons working in the post of

Constable/GD, Head Constable/GD, Head Constable/Driver,

Constable/Driver and Assistant Sub Inspector/Exe who had

completed four years of service including the period of training as

on 1.8.2009 were eligible to compete in this examination. The

petitioner had completed more than four years as Constable/GD in

which post he was recruited in the year 2001 and therefore was

eligible to apply for appointment to the said post.

5. The petitioner‟s candidature was favourably considered by

the respondents and he successfully undertook the written

examination. Thereafter he was called to participate in the

interview and he succeeded in the same as well.

6. In order to support the petitioner‟s contention that he was

physically fit in every respect, Ms. Palli, learned counsel for the

petitioner has pointed out that the petitioner was required to

undertake the physical efficiency test after eligibility verification

as per the prescribed selection procedure. The physical efficiency

test, included the following tests:

a)     100 Mtr race in 16 seconds
b)     1.6 Kms race in 6.5 minutes
c)     Long Jump 3.65 Meters in 3 chances
d)     High Jump 1.2 Meters in 3 chances
e)     Shot Put (16 Lbs) 4.5 Meters in 3 chances

The petitioner has admittedly also successfully completed

the physical endurance tests as well.

7. We are informed that so far as appointment to the post of

Sub-Inspector (Executive) is concerned, for the reason that the

same requires lesser degree of physical activity than the post of

Constable, the respondents have allocated no marks for successful

completion in the physical efficiency test. On the other hand,

candidates seeking appointment to the post of Constable are given

substantial consideration and marks for undertaking the physical

efficiency tests.

8. The petitioner was thereafter required to undergo the

medical test. Medical standards have been prescribed at Sl.No.5

(f) of the above notice dated 14.1.2009 which reads as follows:

"5 (f) Medical Standard

(i) Eye Sight - The minimum distant vision should be 6/6 and 6/9 of 2 eyes without correction i.e. without wearing of glasses.

(ii) The candidate must not have knock-knee, flat foot, varicose veins or squint in eye and should possess high colour vision. Must be in good mental and bodily health and free from any physical defect, which may interfere with the efficient performance of the duties."

9. The submission on behalf of the petitioner is that the

petitioner fully met the requisite standards, was completely fit and

did not suffer from any kind of disability which was interfering in

the efficient performance of his duties.

10. It has been also pointed out that the rules of service of the

respondents require the petitioner to undergo an annual medical

check-up and wherein an assessment is effected on the physical

fitness of the CISF personnel. The petitioner had admittedly been

certified being in Medical Shape I in the Annual Medical

Examinations conducted by the respondents for the year 2007,

2008 and 2009.

11. However, when the petitioner reported for his medical

examination as part of the above selection process, he was issued

a rejection slip dated 8.6.2009 wherein it was stated that the

candidature of the petitioner cannot be considered on the ground

of amputation of the little toe of his left foot.

12. The petitioner has thereafter got himself medically examined

in the department of Orthopeadics at the All India Institute of

Medical Sciences („AIIMS‟ hereafter) from the aspect of functional

disability on account of said amputation. The petitioner was

medically examined by the experts in the department of

Orthopeadics at the AIIMS who have duly opined that the

petitioner was fit to perform and continue in the uniformed service

in which he was serving. It had also been certified that the

petitioner‟s status will not cause any disability in the performance

of his duties.

13. Based on the examination by the Specialists of AIIMS, the

petitioner submitted an appeal in the prescribed format for

examination by the Review Medical Board, enclosing therewith the

medical fitness dated 18.6.2009 issued by the AIIMS.

14. The petitioner was consequently medically examined by a

Review Medical Board on 19.8.2009 which reiterated the

petitioner‟s medical unfitness on account of the aforenoticed

amputation. The petitioner has thereafter submitted

representations‟ to the respondents on 1.9.2009 and 21.10.2009

against the said rejection but has received no response at all.

15. In this background, frustrated with the treatment which was

meted out to him by the respondents the petitioner made a request

to the respondent and expressed his desire for issuance of a no

objection certificate for allowing him to seek outside employment

i.e. employment other than with the combined central paramilitary

forces. It has been urged that by the stand taken by the

respondent with regard to the petitioner‟s fitness, the respondents

have thereby not only jeopardized any chance of petitioner‟s

career progression in the CISF but have also put in jeopardy the

petitioner‟s future career prospects in outside service even.

16. Our attention has been drawn to the communication dated

18.8.2009 issued by the Deputy Commandant/ADM of IGI Airport,

New Delhi informing therein that applications submitted by CISF

personnel for outside employment, other than to CPMF (Central

Para Military Forces) may not be forwarded for issuance of no

objection certificates. It has been pointed out that this

communication is based on a letter dated 19.6.2009 issued by the

office of Additional Director General of CISF to the effect that the

matter had been reviewed and that it had been decided that the

CISF personnel who are „AVSEC‟ trained/Certified Screeners and

have applied for employment in higher posts in CPMFs only may

be issued no objection certificate by the competent authority.

However, those personnel who have applied for employment in

higher posts elsewhere may not be issued no objection certificates.

AVSEC is stated to be an abbreviation for „Aviation Security‟.

Needless to say, inherent in this communication is the desire

and intention of the respondents to retain CISF personnel who

have undergone the specialized training in the Aviation Security

Course.

17. We are informed that the petitioner is stated to have

successfully completed the basic AVSEC course from 2.9.2008 to

12.9.2008 for which he has been so certified on 4th of November,

2008 by the Dy.Commissioner of Security (CA). The petitioner has

been identified as a competent commando and forms a part of the

elite Quick Reaction Team of the CISF and is undertaking serious

security functions at sensitive postings without any kind of

complaint at all.

18. In this background the present writ petition has been filed

making a prayer for quashing of the orders dated 8.6.2009 and

19.8.2009 and seeking a direction to the respondents to appoint

the petitioner as a Sub-Inspector (Exe.) with all consequential

benefits with effect from the date the other candidates selected in

the LDCE 2009 were so appointed. In the alternative, the

petitioner makes a prayer for a direction to the respondent to

invalidate the petitioner along with grant of disability pension.

19. The opposition of the writ petition by learned counsel of the

respondent is primarily based on the ground that the appointment

pursuant to the notice dated 14.1.2009 was not in the nature of a

promotion but was appointment by the direct recruitment process.

A competitive examination is conducted for the same by the

respondents. The petitioner has to compete on merits with other

departmental candidates and has to be free from any physical

defect. Reliance has been placed on the proceedings of the

medical examination conducted on 8.6.2009 and that of the review

medical board conducted on 19.8.2009 to contend that the

petitioner is medically unfit for appointment to the post of Sub-

Inspector (Exe.). It has further been contended that in view of the

circular dated 19.6.2009, a No Objection Certificate cannot be

issued to the petitioner to seek outside appointment.

20. We have carefully considered the rival contentions of the

parties. Even though the recruitment to the post of sub-inspector

(Exe.) though the LDCE 2009 for which applications were invited

by the communication dated 14.1.2009 is strictly not in the nature

of a promotion, yet perusal of the notice would show that only

departmental candidates were eligible for undertaking the written

examination. No recruitment from personnel other than the

notified personnel in the CISF is envisaged therein. Written and

physical standards have been prescribed as well as an interview.

It needs no elaboration that the effect of successfully undertaking

the selection process and the subsequent appointment to a higher

post have the real impact of a promotion so far as the career-

profile of the participating candidates is concerned. Therefore the

opposition to the writ petition on the ground that the notice dated

14.1.2009 did not envisage promotion is misconceived. In any

case, the orders which are passed against the petitioner will

impact his career-progression which we now propose to examine

hereinafter.

21. In the counter affidavit filed by the respondent, it is not

disputed that the petitioner has remained posted at sensitive

positions from the time he has joined the force. He was compelled

to suffer the amputation of his little toe in the left foot on account

of a snake bite while he was in the official barracks at Mumbai

when posted at the International Airport. The amputation has not

impacted the functioning of the petitioner at all and he has

continued to remain posted at sensitive postings till 2007. Even

when the respondents had to transfer the petitioner, he was not

given a soft posting. Since 1.6.2007, the petitioner has been

posted at the International Airport in New Delhi. It cannot be

disputed that such a sensitive posting requires the security

personnel manning the airport and discharging function of airport

security to be in the fittest possible shape. Certainly the

amputation of his toe had no impact on the functions which the

petitioner has been required to discharge.

22. The petitioner‟s fitness has been endorsed by the

respondents who since 1.8.2007 have posted him as a Commando

with the Quick Reaction Team. We are informed that prior to his

assignment with the QRT, a Constable has to undergo a Quick

Reaction Team course for a period of 35 days which is conducted

at Aarakonam, Vellore District, Tamil Nadu. The petitioner has

been posted as a Commando after having been shortlisted and

having successfully undertaken this course.

23. Not a single complaint in the functioning of the petitioner

has been placed before us. No deficit on account of loss of his

little toe is also available or pointed out in the record or in the

documents placed before us.

24. At this stage, it becomes necessary to notice an extremely

distressing factor. An able soldier with the CISF has been declared

as medically unfit. The fitness standard in relation to the

amputation of a little toe obviously would have required an

assessment by Orthopeadic experts. The perusal of the record of

the medical examination conducted on 8.6.2009 and the counter

affidavit would show that the petitioner has been certified as unfit

by the Chief Medical Officer at the NHCC, Saket, New Delhi-17.

Such a Chief Medical Officer does not appear to be possessing any

training as an orthopeadic expert.

25. So far as the position of the Review Medical Board which

had conducted the petitioner‟s medical examination on 19.8.2009

is concerned, we find that according to the counter affidavit the

Board consisted of a medical specialist, surgical specialist and an

ophthalmologist who examined the petitioner and after

considering all the reports and physical examination, declared him

unfit due to amputation of little toe of left foot. It is clearly

evident that the Board which had re-examined the petitioner and

certified him as unfit also did not consist of any expert of

orthopeadics, the concerned speciality.

26. We find that this court had the occasion to consider a similar

medical examination of a candidate by a board which did not

consist a specialist of the discipline which was involved. In the

decision in Anish Barla vs. Union Public Services Commission

reported at 2006 VIII AD (Delhi) 622 appointment to the post of

Assistant Commandant Group A in the Central Police Forces was

involved. The petitioner had been rejected by the respondents on

grounds of medical unfitness. The petitioner had assailed the

rejection inter alia on the ground of the petitioner having been

declared fit by a dermatologist of a recognized hospital of Delhi

and that he had wrongly been declared medically unfit by a Board

which did not include a specialist of the required field.

Observations in para 4 of the judgment deserve to be considered

in extenso which reads as follows:

"4. It may be mentioned by us that the above order has been passed by us on the basis of the statement made by the counsel appearing for the petitioner that the petitioner is now free from the aforesaid skin disease, and upon our noting with anguish from the record of the respondent that although the petitioner was held unfit for appointment on the ground of inveterate skin disease, none of the members of the Medical Board who had thus disqualified the petitioner had any experience in dermatology. This is, to say the least, most unfortunate and we record our disapproval of the manner in which the case of the petitioner has been dealt with by the respondent. We hope that the respondent will desist from committing such mistakes in the future and will bestow earnest consideration to such like cases since the very right to life and livelihood of a person may be adversely affected by the same.

27. It is apparent that despite this pronouncement made on

14.3.2006, the respondents have not paid any heed to the

composition of the Board which examines the fitness of the

candidates. It also shows that the respondents have not at all

given any heed to the material facts of the case which have

certainly a bearing on the fitness of the petitioner. Mere

amputation of the little toe of the left foot by itself may not

necessarily render a candidate unfit for appointment to a

particular post. Further the impact of declaring him as medically

unfit may render him unfit for continuation in the post which he

was occupying at the time of his medical examination.

28. The respondents accept the fact that the petitioner was

certified as being in Shape I category for the year 2007, 2008 and

2009.

29. It may be noted that amputation of a part of a body may not

in all cases be necessarily sufficient to create a disability for

appointment to a post. The very fact that a candidate seeking

appointment is required to undergo a medical examination,

manifests the intention that there has to be an assessment of the

person‟s capabilities and fitness from the medical point of view.

Different individuals have different capabilities. One person may

have the capability to overcome the deficit, if any, created by such

an amputation of the toe, while another person may not be able to

do so. For this reason, it is essential that the fitness of a person is

assessed only by experts of the specialty concerned. The

respondents shall ensure that medical boards which are

constituted in future for examining medical fitness of candidates,

consist of members of the specialty concerned.

30. It is pointed out by Ms.Palli that out of 360 vacancies

advertised on 14th January, 2009, the respondents could not even

find sufficient candidates who could meet the qualified marks for

the posts by the LDCE 2009. It is contended that vacancies

therefore are available for appointment of the petitioner.

31. It is unfortunate that a stand has been taken in the counter

affidavit that the annual medical examination is only a formal and

routine check-up. Such a stand in a counter affidavit filed by a

Central Paramilitary Force Service requires to be deprecated.

Fitness of the personnel manning these forces is an essential

requirement for their continued retention in the forces. It is clear

that such a stand has been taken only as a defence to the present

petition and is not the ground reality. Retention of unfit personnel

in the force would have disastrous consequences and could impact

national security as well. The annual medical examination in any

force charged with security duties cannot and ought not be a mere

formality or routine check-up.

32. In view of the above stand, this aspect deserves immediate

attention of the Director General of the CISF. A copy of the

counter affidavit shall be placed before the Home Secretary of the

Central Government and the Director General, CISF for perusal

who shall ensure that in case the annual medical examination is

not being given the due and necessary importance, immediate

steps in this behalf be taken.

33. We may also examine the alternate relief which has been

sought by the petitioner. We find substance in the submission of

Ms.Rekha Palli, learned counsel appearing on behalf of the

petitioner that in the face of the respondents‟ certification of

petitioner‟s medical status as unfit, the petitioner shall be

prejudiced in all further promotions and that he would stagnate as

a Constable with the CISF. It is contended that by the refusal of

the no objection certificate to the petitioner, the petitioner is

unfairly being denied opportunity to seek alternative employment

so that he would have better career prospects

34. The respondents have sought to justify this refusal for grant

of the no objection certificate on the ground of the communication

dated 19.6.2009 issued by the office of the Additional Director

General/Airport Sector, Central Industrial Security Force. This

communication does not come in the way of such personnel who

seek a no objection certificate for employment in higher posts in

the CPMF‟s only.

So far as the petitioner is concerned it is obvious that he is

an efficient AVSEC commando and giving satisfactory service to

the CISF and the country. Yet he has been declared unfit by

persons who were not experts in the discipline concerned. In case

the petitioner has to be maintained as medically unfit, his

continued retention with the CISF in the post of a constable only

against his normal aspirations for seeking career progression is

unreasonable, unfair and highly unjust.

35. In view of the above discussion, the petitioner is entitled to

relief in the present writ petition. However, inasmuch as,

certification of the petitioner‟s fitness by proper experts is

essential for appointment to any post in the Central Paramilitary

force, we order as follows:

(i) the orders dated 8.6.2009 and dated 19.8.2009 declaring the

petitioner as medically unfit for the appointment to the post of

Sub-Inspector (Executive) are hereby set aside and quashed.

(ii) We direct the Commandant, R & R, Delhi to constitute a

board of experts to medically examine the petitioner and submit a

report of his medical fitness. The petitioner shall appear before

the Commandant with copies of all documents including his

medical documents of 2007 to 2009, the reports of All India

Institute of Medical Sciences and all other relevant service records

on 10th May, 2010 at 11 AM. The board which is constituted by the

Commandant shall examine the petitioner on a notified date and

time will take into consideration the facts which are noticed in our

present order as well as the said records. The respondents shall

also produce before the Board all the records of the petitioner‟s

examinations‟ in terms of the notification dated 14.1.2009

pursuant to his application, including the record of the medical

examination and the review medical examination.

(iii) The report of the board constituted by the Commandant, R &

R, Delhi Cantt. shall be submitted to the Director General, CISF.

Copy thereof shall be furnished to the petitioner as well.

(iv) In case, the petitioner‟s fitness is certified in the report, the

respondents shall forthwith take steps for appointing the

petitioner as Sub-Inspector (Executive) with consequential benefits

with other candidates who were selected in the LDCE-2009.

(v) In case, the petitioner is declared medically unfit for

appointment, the respondents would consider the petitioner‟s

request for invalidating the petitioner and grant of disability

pension in accordance with the applicable rules.

(vi) Orders in terms of the above directions shall be passed

within four weeks of the receipt of the medical report from the

Commandant, R & R Hospital, Delhi Cantt.

(vii) in case the petitioner is still aggrieved by the orders passed

by the respondents, it shall be open to him to assail the same by

appropriate legal proceedings.

This writ petition is allowed in the above terms.

Dasti to parties under signatures of the court master.

Copy of the order be sent to the Secretary, Ministry of Home

Affairs and Director General, CISF in terms of the directions made

in paras (i) to (vii) above.

GITA MITTAL, J.

INDERMEET KAUR, J.

May 04, 2010 rb