Deepak Kumar vs Union Of India And Ors
2010 Latest Caselaw 4476 Del

1
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +     W.P.(C)No.13159/2009

                                Date of Decision : 23rd September, 2010
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      DEEPAK KUMAR                                      ..... Petitioner
                            Through : Mr. Prakash Kumar and
                                      Mr. A. Lal, Advs.
                       versus

      UNION OF INDIA AND ORS              ..... Respondents
                     Through : Mr. Anil Gautam, Adv.


CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                    NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                   NO

3.      Whether the judgment should be                           NO
        reported in the Digest?


GITA MITTAL, J. (Oral)

1. The petitioner challenges the rejection of his candidature

for appointment to the post of Assistant Commandant with the

Central Police Force in the selection process initiated by the

respondents in the year 2006. The petitioner contends that he

satisfied the prescribed medical standards for the required

corrected vision which were declared by the respondents and

notified in the notification dated 6th May, 2006. The rules were

laid down for the purpose of filling up vacancies of Assistant

Commandant in the Central Police Force stand laid down in the

said notification dated 6th May, 2006. The petitioner is

aggrieved by his rejection on the 27th June, 2007 by the single

medical expert and on 24th March, 2009 by the review medical

board conducted pursuant to the order dated 12th February,

2009 passed in the petitioner's earlier writ petition bearing

WPC(C)No.9364/2007 are illegal and untenable.

2. The preliminary ground of challenge to the declaration of

the petitioner's unfitness is premised on the submission that

the respondents cannot change the selection process once the

same has commenced.

The respondents have placed reliance on the OM

No.F7(1)-28/52-M II dated 7th April, 1953 issued by the then

Ministry of Health as well as hand book on medical examination

issued by the Ministry of Health and Family Planning of the

Government of India, (Second edition published in 1977) which

has been placed before us.

3. We have heard learned counsel for the parties. So far as

the factual narration is concerned, it remains undisputed. The

respondents had invited applications by public advertisement

issued in the year 2006 for appointment to the post of

Assistant Commandant in the Central Police Forces. This

advertisement has been placed before us and clearly stipulates

that the candidates "must be in good mental and bodily health

and free from physical defect likely to interfere with the

efficient performance of the duties"

4. The petitioner successfully qualified the written test as

well as physical test whereafter he was called upon to appear

for a medical examination as per the prescribed procedure.

The petitioner was medically examined on 28th June, 2007 the

specialist found him unfit on account of "high myopia (power of

glasses are -6.0 diopter BE)".

5. The petitioner places reliance on an evaluation of his eyes

conducted at the O.P.D. of the Ram Manohar Lohia Hospital on

3rd October, 2007 wherein it was followed:

"नाम/Name Mr. Deepak Kumar

दायें/RIGHT बाएं/LEFT SPH CYL AXIS PRISM AXIS SPH CYL AXIS PRISM AXIS दरू से पड़ने के लऱए DISTANCE OR -5.50 -1.00 P.Oo --- 6/6 5.5 -1.00 P.Oo --- 6/6 CONSTANT नजदीक से

--- ---

READING

शीशा/Lenses................Frame........................shape...................... B.N..............P.D..........F.B.........Sides............Bridge.................. तारीख/Date 3.x.07"

6. Aggrieved by the declaration of medial unfitness by the

respondents, the petitioner filed WP(C)No.9364/2007. This writ

petition was disposed of by an order passed on 12th February,

2009 directing the respondents to conduct a review medical

board of the petitioner taking into consideration the medical

certificate of the petitioner which had been issued by the Ram

Manohar Lohia Hospital.

7. It is undisputed that the review medical board was

conducted by three specialists on 24th March, 2009, as

directed. The review medical board however has again

recorded that "as his total amount of myopia (including the

cylinder) exceeds the permitted power - 4.0D, he is considered

„unfit‟ for services."

8. Learned counsel for the parties have placed before us the

notification dated 6th May, 2006 notifying the rules for the

competitive examination held by the Union Public Service

Commission in 2006 for the purpose of filling up the vacancies

of Assistant Commandant in the Central Police Force. Clause 15

of these rules clearly provides that the candidates who obtain

minimum qualifying marks in the written examination as may

be fixed by the commission in their discretion shall be

summoned for the physical standards/physical efficiency tests

and medical standards tests to check whether they meet the

physical and medical standards specified in Appendix-II to

these Rules. So far as Appendix-II(ii) is concerned which

stipulates inter alia the following physical and medical

standards for the candidates for the post of Assistant

Commandants in the Central Police Forces:

"(ii) Medical standards:

(a) Eye-Sight:

              Distant Vision                Near Vision
              Better eye Worse eye          Better eye Worse eye
                  (Corrected vision)            (Corrected vision)
                  6/6          6/12
                      or
                  6/9           6/9               J.I         J.II

             (b) The candidates must not have Knock-

knees, Flat foot, Varicose veins or squint in eyes and they should possess high colour vision. The candidates will be tested for colour vision by Ishahara's test as well as Edrich- Green Lantern Test. They must be in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of the duties."

9. Learned counsel for the petitioner has urged that the

respondents were bound by the vision prescription contained in

sub para(a) of para (ii) of the prescribed standards noted above

and could not have rejected the petitioner at all upon arriving

at a finding that his corrected vision was 6/6 in both eyes.

10. We find, however, that this submission fails to take into

consideration the prescription contained in sub para(b) of the

prescribed medical standards in Appendix-II(ii) which clearly

mandates that the candidate must be in good mental and

bodily health and free from any physical defect likely to

interfere with the efficient performance of the duties. This

stipulation requires that even if the candidate meets the

prescribed medical standard and had the corrected vision as

prescribed, the medical specialist will require to evaluate and

opine that the candidate is in good mental and bodily health

and free from any physical defect likely to interfere with the

efficient performance of the duties.

11. It is not disputed before us that discretion to so evaluate

the candidate was also clearly stipulated in the advertisement

which has been issued by the respondents as well.

12. Additionally, a Handbook for Medical Examination stands

issued by the concerned Ministry of the Government of India.

The extract of the relevant portion of the second edition of the

hand book published in 1977 has been placed before this

Court. This handbook acts as a reference book and provides

the guiding principles to authorities who are required to

conduct medical examinations and standards of physical

fitness for employment in the Indian Administrative Service,

Indian Police Service, Indian Foreign Service and other Central

services, recruitment to which is made by competitive

examination through the UPSC as prescribed in the "Medical

Regulations and Medical Report Form for IAS, IPS, IFS and

Central Services" Appendix-I."

13. The respondents have placed reliance on the instructions

contained in para 6(c) and 6(d) of these instructions which

reads as follows:-

"6.(c) The following standards are prescribed for distant and near vision with or without glasses for different types of services.

            Class of Service           Distant Vision        Near Vision
                                      Better    Worse      Better    Worse
                                       eye        eye       eye        eye

(Corrected vision) (Corrected vision) Class I & II

(i) Technical... 6/6 6/12 J.I J.II or 6/9 6/9

(ii) Non-technical.. 6/9 6/12 J.I J.II

(d) In every case of myopia, fundus examination should be carried out and the results recorded. In the event of pathological condition being present which is likely to be progressive and affect the efficiency of the candidate, he/she should be declared unfit. In respect of the services mentioned under the category "TECHNICAL" and also for any other services concerned with the safety of public the total amount of myopia (including the cylinder) shall not exceed - 4.00 D. Total amount of Hypermetropia (including the cylinder) shall not exceed +4.00 D:

Provided that in case a candidate in respect of the services classified as "Technical" (other than the Services under the Ministry of Railways) is found unfit on grounds of high

myopia, the matter shall be referred to a special board of three Ophthalmologists to declare whether this myopia is pathological or not. In case it is not pathological, the candidate shall be declared fit, provided he fulfills the visual requirements otherwise.

It is clarified that examination by a special board of three Ophthalmologists is a part of the examination by the medical board and the medical board's report will not be deemed as complete unless it includes the report of the special board. Therefore in such cases where a candidate is found to be having high myopia, the Central Standing Medical Board/State Medical Board should immediately refer the candidates for a special board of three ophthalmologists constituted by the Medical Superintendent of the hospital/AMO, with the head of the Department of Ophthalmology of the hospital or the senior most Ophthalmologist as the Chairman of the Special Board. The examination by the special board should be done on the same day as that of the examination by the medical board. At places where it is not possible to convene the special board of three Ophthalmologists on the day of the medical examination by the Central Standing Medical Board/State Medical Board, the special board may be convened at an earliest possible subsequent date."

14. We may notice that the medical standard prescribed as

para 2(a) of the notification dated 6th May, 2006 is identical to

the prescription contained in para 6(c) of the handbook which

is set out hereinabove.

15. The respondents have explained that myopia is an error

of refraction of the eye. It is further submitted that there are

three diseases for which an individual has to wear glasses for

correction of the eye which includes the following:-

"(a) Myopia - In which Concave Glasses are used for correction of vision (by which petitioner is suffering).

               (b)      Hypermetropia - That is a disease in
                       which convex lenses are used to correct
                       the vision.

              (c)      Astigmatism - In which different line of

axis has different number to correct the vision."

It has been pointed out that in all three above noticed

conditions, the individual has to wear glasses for vision

correction.

16. So far as the advertisement is concerned, it is not

possible to enumerate and detail every condition which would

require to be considered for assessing physical fitness of the

candidate including the fitness of his eye functioning which

could interfere in the efficient discharge of duties or otherwise.

For this reason, the various diseases which could impact the

efficiency or functioning of a candidate and an officer of the

force cannot be set out in the advertisement. It is only the

bare minimum prescription which is contained therein whereas

the various factors which would require to be considered by the

doctors have been provided in the handbook noted above.

17. In addition thereto, the respondents have placed before

this court the fact that the manner in which the examination

was required to be conducted and that the Ministry of Health of

the Government of India had issued an office memorandum

No.F7(1)-28/52-M II dated 7th April, 1953 prescribing that

-4 diopter would be the upper limit of the power of glasses if all

other parts of eyes are normal except the power of glasses is

-4D, +4D or including total power of cylindrical glasses for

appointment to the posts with the Central Government. The

respondents have explained that in case the changes in the

disease is such that it brings the vision to less than 6.9 in both

eyes, then it would not be accepted, even if the power of the

corrective glasses is less than - 4 diopter.

18. So far as the duties to be performed by the Assistant

Commandant and the personnel of the Combined Police Forces

are concerned, we find that they are concerned with the safety

of the public. The respondents have stated that these are

combatant forces where officers are required to lead from front

are armed with weapons and carry out operations in day as

well as night time and hostile difficult terrain also. In that view

of the matter, any condition which could interfere with efficient

discharge of duties would not only imperil the safety of the

candidate but could result in drastic consequences in the

discharge of functions, and compromise public safety.

19. So far as the medical examination of the petitioner on

24th March, 2009 has been conducted by the review medical

board of medical officers consisting of three ophthalmologists

which had declared the petitioner unfit finding the petitioner

with the total amount of myopia (including the cylinder

exceeding the permitted power -4.0 diopter) Even if we were to

accept the contentions of the petitioner that he satisfied

minimum standards of corrective vision as prescribed in the

notification dated 6th May, 2006, the respondents cannot be

precluded from the assessment of the ability of the petitioner

to efficiently discharge his duties. The experts have opined

that given his medical conditions, he would not have been able

to efficiently discharge the functions which the petitioner would

be required to perform if he was appointed as an Assistant

Commandant. The respondents have further submitted that the

person who suffers from "high myopia" and is utilizing glasses

having a power of -6 diopter in both eyes it would have a

problem of depth perception as well as vision problems. It has

been submitted that such a person would have difficulty in

seeing targets so as to effectively aim and shoot.

20. Given the stipulation in the advertisement as well as in

the notification dated 6th May, 2006 that the candidates must

be in good mental and bodily health and free from physical

defect likely to interfere with the efficient performance of the

duties, we are unable to agree with learned counsel for the

petitioner on his contention that the respondents have at all

changed the selection process or medical standards the mid

way after commencement of the selection process.

21. It has been contended on behalf of the petitioner that the

respondents have not followed the prescription of para 6 (d) of

the handbook of Medical Examination (2nd Edition), 1977

noticed hereinabove. In this regard, we may observe that the

petitioner did not seek any review medical examination nor

sought constitution of the review medical board. While

considering the petitioner's challenge by the order passed on

12th February, 2009, this court had directed that the petitioner

be examined by the review medical board. We find that the

respondents have got the review medical board conducted by

three specialists. Even otherwise, the petitioner does not

dispute the finding so far as his vision parameters are

concerned. It is his contention that despite the assessment of

his corrected vision, the respondents could not have found him

unfit for appointment. This submission is also, therefore, devoid

of merit and is rejected.

22. In this view of the matter, we find no merit in this writ

petition which is hereby dismissed.

GITA MITTAL, J

J.R. MIDHA, J SEPTEMBER 23, 2010 mk