Delhi High Court
Faizan Siddiqui vs Sashastra Seema Bal on 3 May, 2011
Author: Gita Mittal
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)No.7208/2008
Date of Decision :May 3, 2011
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FAIZAN SIDDIQUI ..... Petitioner
Through : Mrs. Gita Luthra, Sr. Adv. With Ms.
Akanksha Munjal, Adv.
versus
SASHASTRA SEEMA BAL ..... Respondents
Through : Mr. AK. Bhardwaj and Mr. Gaurav
M. Librahan, Adv.
CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether 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 Yes
reported in the Digest?
Electronically signed by:
Sharma Ambika
GITA MITTAL, J. Date : 2011-5-28 18:28
1. The instant case arises in unique facts relating to medical
fitness of a female candidate seeking recruitment to Sashastra
Seema Bal who had been diagnosed as suffering from a hormonal
anomaly which is described as a 'Disorder of Sexual Differentiation'
and had undergone the necessary surgery and thereafter placed on
hormonal replacement therapy who has been found physically fit
despite her having been found unfit in all evaluation tests. The
medical unfitness was certified by the doctors of the Sashastra
W.P.(C) No.7208/2008 page 1 of 58
Seemfa Bal who did not have expertise in the concerned field and
without any expert opinion or scientific material.
2. The petitioner Faizan Siddiqui assails the rejection of her
candidature for the post of Constable (General Duty) Female in the
Sashastra Seema Bal (`SSB' hereafter) on grounds of medical
unfitness by a medical examination conducted on 3 rd February,
2008 and the review medical board conducted on 25 th April, 2008.
3. The SSB had published an advertisement in the Employment
News dated 24-30th November, 2007, also uploaded on the SSB
website, inviting applications for appointment to 128 vacancies for
the post of Constable (GD) Female to be filled from the UP State.
Overall 763 vacancies were notified for various states and Union
Territories. The recruitment notice informed the candidates that
their place of duty would be anywhere within as well as outside the
territory of India.
4. The selection procedure required the eligible candidates to
appear in a recruitment test; to undergo screening for height and
weight measurements and pass a Physical Efficiency Test (PET). A
candidate was thereafter required to undergo a written examination
of 50 marks and an interview of 15 marks to be eligible for the
medical examination for assessment of medical fitness.
5. The petitioner was found eligible and was issued an admit
card for the written examination conducted by the respondents on
28th January, 2008. She cleared the measurement stipulations. The
W.P.(C) No.7208/2008 page 2 of 58
respondents state that between the 28th January, 2008 to 8th
February, 2008, the petitioner qualified the physical standards test;
physical efficiency test; as well as the written test and the interview
at the SHQ, SSB, Gorakhpur.
6. It appears that at the age of 15, the petitioner had a complaint
of swelling in her labia (private parts). She had got herself
examined in the year 2002 about five years before the recruitment
process at the Sanjay Gandhi Postgraduate Institute of Medical
Sciences, a premier tertiary care referral hospital.
7. The petitioner's medical condition, treatment and the status of
her fitness are best stated by her treating physician, Dr. V. Bhatia, a
professor in the Department of Endocrinology, in the Sanjay Gandhi
Post Graduate Institute of Medical Science at Lucknow who has
summarised the petitioner's medical history and treatment in the
certificate dated 12th May, 2008 as follows:-
"Faizan Siddiqui was seen by me in 2002, at
age 15 years, for complaint of swellings in her labia
(private parts). On examination, she had external
gonads which appeared like testes, but no
development of any male like sexual characteristics
of her external genitalia. She had breast
development and a feminine voice. The clinical
suspicion of the disease Complete Androgen
Insensitivity Syndrome was confirmed by the
following tests: Karyotype 46 X Y, serum testosterone
1380 ng/dl, LH 15 IU/L. This is a condition where by
birth, the action of male harmone on the body does
not occur, so a baby who is born male has physical
characteristics of a female, and throughout life
develops like a girl, physically, mentally and
psychologically.
After appropriate counseling with patient and
her parents, a surgical opinion was sought and Dr.
W.P.(C) No.7208/2008 page 3 of 58
Rakesh Kapoor, professor of urology at this
institution, performed a removal of testes followed by
vaginoplasty, in 2002. Since then, she has been on
female hormones by tablet.
She is advised to take female hormone lifelong.
She is not expected to have any serious illness as
long as she is compliant with her medication. She
can certainly have a normal married life, and her
condition is compatible with any career a woman
normally can undertake. However, she has been
counseled that she will not be able to bear children in
the natural way.
I am contactable for any clarifications or help in
her matter."
(Emphasis supplied)
8. It would appear that under medical advise of the experts at
the Sanjay Gandhi Postgraduate Institute of Medical Sciences, the
petitioner is required to take female hormone replacement therapy
by a daily oral tablet. The petitioner has placed before us a
description of Hormone Replacement Therapy ('HRT' hereafter) and
a copy of prescription of Dr. V. Bhatia dated 19 th August, 2009
which show that the petitioner is taking 0.025 mg of the medication
Lynoral every day. Lynoral is stated to be a birth control pill which
is prescribed to minimize the risk of future ostrom.
9. The petitioner is thus stated to have been suffering from a
hormonal anomaly which is described as a 'Disorder of Sexual
Differentiation' (`DSD' hereafter). The surgical procedure
undergone by the petitioner of removal of testes is described as a
'gonadectomy'.
10. As part of the selection process, on 3rd February, 2008 more
than five years after being operated, the petitioner underwent the
W.P.(C) No.7208/2008 page 4 of 58
medical examination as part of the selection process. She was
informed that she had been declared medically unfit and her
candidature was rejected without disclosing any grounds to her.
The record of the medical examination conducted on 3rd February,
2008 placed before us discloses that the petitioner was declared
medically unfit due to "congenital anomaly & psuedo
hermaphrodism" by the Recruitment Medical Board.
11. In this background, the petitioner appealed against this
declaration of medical unfitness to the Inspector General
(Personnel) of the SSB with the following certificate dated 12 th
February, 2008 by Dr. V. Bhatia, endorsed thereon :-
"This is to certify that Faizan Siddiqui had a
disorder of sexual differentiation (probable partial
androgen insensitivity) for which a gonadectomy
was necessary. This was performed 5 years back.
Diagnosis and surgery were all performed at my
hospital, Sanjay Gandhi PGIMS. Since then, she is
on female hormone replacement by daily tablet.
She follows up regularly in my OPD. She is in
good general health; her weight is 55 kg and
blood pressure 110/66 mmflg.
I consider her fit for any kind of job or
profession."
(Emphasis supplied)
The fact that this certificate is endorsed on the form itself,
manifests that Dr. V. Bhatia was aware that the petitioner was
seeking employment with the respondent force and was certifying
her fitness for the same.
12. The review medical board of the petitioner was conducted on
25th April, 2008. This Board rejected the petitioner's appeal on
W.P.(C) No.7208/2008 page 5 of 58
grounds of medical unfitness endorsing the following remarks :-
"Psuedohermaphrodism.
Congenital Anomaly
Vaginoplasty done"
As a result, the respondents rejected the petitioner‟s
candidature for the said post.
13. It is pointed out that the petitioner had earlier filed a writ
petition bearing WP (C) No.4016/2008. In this writ petition, the
petitioner raised a question as to whether she can join the services
of the SSB or not. The writ petition was filed before the petitioner
knew of the grounds of her rejection in the review medical
examination on 25th April, 2008. In this background, the writ
petition was disposed of by an order passed on 26 th May, 2008 with
a direction to the respondents to forward copy of the Review
Medical Examination to the petitioner within a period of one month
from the date of passing the order to enable her to take necessary
action.
These proceedings were forwarded to the petitioner under
cover of a letter dated 19th June, 2008 and have been annexed with
the writ petition.
14. In view of the petitioner's grievance that the respondents had
failed to inform her about the reasons for her rejection by the first
board, we had called upon the respondents to also produce before
us the relevant records. The respondents have placed before us
the original records relating to the medical examination of the
W.P.(C) No.7208/2008 page 6 of 58
women candidates on 3rd February, 2008 and the further
consideration. The same have been perused.
15. It appears that a representation made by the petitioner was
also pending consideration with the respondents. It has been
contended that in view thereof, the respondents had reconsidered
the matter at the highest level. The record of this consideration has
also been placed before this court. Shri S.K. Bhagat, Inspector
General (Personnel) of the respondents who was considering the
representation observed that though the petitioner is a normal
female now, yet she is on regular hormonal medicine lifelong as per
the medical summary given by Dr. V. Bhatia. He consequently,
sought the advise of the Additional Director General (Medicine)
CPMF on the issue. In this regard, Shri S.K. Bhagat recorded as
below :-
"3. Since, the matter is of a Medical fitness of
candidate, the ADG Medical (MHA) can advice
on the fitness or otherwise of the individual as
this is a rare case where the petitioner had
undergone surgical operation for
congenital sexual disorder. Though, she is
a normal female now, yet she is on regular
hormonal medicine lifelong as per medical
Summary as given by Prof. Vijayalakshmi
Bhatia, Pediatric Endocrinologist, Deptt. Of
Endocrinology Lucknow (UP)-226014 dated
12/05/2008 (Copy enclosed for ready reference)
(Flag-D).
4. Keeping in view of the facts enunciated
above, SSB is of the view to seek the advice of
Addl. DG (Medical) CPMFs on this issue so as to
apprise the petitioner."
16. The opinion rendered by Dr. K. Bhushan, Additional Director
W.P.(C) No.7208/2008 page 7 of 58
General, CPMFs Ministry of Home Affairs dated 28th August, 2008 as
an expert on this query, has been placed before us pursuant to our
directions and deserves to be considered in extenso. The same is
extracted below:-
"Ms. Faisan Siddiqui as per medical record
available is a true hermaphrodite as she is
having both ovarian and testicular tissue. She
has Karyotype 46 XY. The phenotype varies
depending on a proportion of XY Cells and their
distribution. Genetic sex is determined by the
presence or absence of Y chromosomes. No
matter how many X chromosomes are present,
a single Y chromosome dictates testicular
development and the genetic male gender. Ms.
Faisan Siddiqui has undergone surgery for
removal of testes followed by Vaginoplasty.
She will have to remain on female hormone life
long and she may remain disease free as
long as she is compliant to medication.
Although she may have a normal married
life yet she will not be able to bear
children in natural way which may lead to
adjustment problems in latter life.
As it is apparent from the above
discussion that Ms. Faisan Siddiqui is not a
healthy fighting fit female candidate for
recruitment in Armed Force and that she has to
remain on medication through out her life
failing which she may develop serious
illnesses and change in her sexual
characteristics. Therefore she is not fit for
combatant duties in Armed Forces."
(Underlining supplied)
Petitioner's contentions
17. The petitioner has assailed the decision of the medical boards
including the review medical board as well as the rejection by the
respondents premised thereon contending that the respondents'
decision declaring her unfit for service on medical grounds were
W.P.(C) No.7208/2008 page 8 of 58
based on no material at all and were contrary to expert evaluation.
The petitioner also contends that in view of her fitness, the decision
rejecting her candidature has no nexus to the objective of the
selection process of ensuring physical and medical fitness in
recruits. It is contended that the decisions of the respondents are
based on assumptions which were without any basis in fact or
scientific evidence. It has further been urged that the declaration
of her medical unfitness in the medical examination conducted on
3rd February, 2008; the review medical board on 25 th April, 2008
and the opinion dated 28th August, 2008 of Dr. K. Bhushan, ADG,
was not by persons who had the relevant expertise. It is
consequentially urged that the decision of the respondents is
irrational and arbitrary.
Respondents contentions
18. The respondents have contested the claim of the petitioner.
Reliance is placed on the record of the medical examination and
the review medical examination and the opinion of Dr. K. Bhushan.
Mr. A.K. Bhardwaj, learned counsel for the respondent has also
placed extensive reliance on the regulations governing medical
examination to contend that the very fact that there was an issue
of a congenital anomaly, rendered the petitioner medically unfit for
recruitment.
Questions arising for adjudication
19. In the above facts, the questions which arise may be summed
W.P.(C) No.7208/2008 page 9 of 58
up thus :-
(i) The first question which begs an answer is whether the
decision of the respondents is based on relevant and material
evidence which has been rationally considered.
(ii) The second question which arises for consideration is whether
the rejection of the petitioner‟s candidature was premised on the
reasonable objective of medical fitness for recruitment which is
sought to be achieved by the respondents and therefore was not
arbitrary or discriminatory.
(iii) The third question which requires to be considered is as to
whether the petitioner's medical fitness has been fairly and
appropriately evaluated by the competent persons. In other words,
did the SSB adopt a fair, just and reasonable procedure as
prescripted in conducting the medical examination/evaluation of
fitness of the petitioner.
These questions may be considered in seriatum.
(I) Whether the decision of the respondents is based on relevant
and material evidence?
20. It is trite that an administrative order could be held to be
based on relevant material if it is duly supported by relevant
material. Such an administrative order cannot be made the subject
of judicial review.
21. To support a decision, the record relied upon by the
respondents must also disclose that the decision was based on
W.P.(C) No.7208/2008 page 10 of 58
substantive evidence which has been duly considered and justifies
exclusion of the petitioner from the service.
22. Mr. Bhardwaj, learned counsel for the respondents has
contended that the Medical Recruitment Rules set out aspects of
the 'general examination' as well as the 'general grounds' of
rejection of candidates. The relevant portion of these rules reads
as follows:-
"General Examination
3. While examining the candidates (he/she)
principal points which need careful attention are as
under:
a) xxx xxx xxx
k) Should not have congenital malformation or
defects.
xxx xxx xxx
h) He/She should have no inguinal, scrotal
swelling.
General Grounds for Rejection
4. Candidates (Male/Female) presenting with any of
the following conditions will be rejected:
xxx xxx xxx
q) Any congenital abnormality."
(Emphasis supplied)
Other than this reference to 'congenital malformation' and
'congenital anomaly', no other rule, regulation or guideline could
be pointed out by the respondents.
23. Before proceeding any further, it is essential to understand
W.P.(C) No.7208/2008 page 11 of 58
the meaning and impact of 'congenital malformation' and
„congenital abnormality‟.
24. 'Congenital malformation' or defect or abnormality is any
malformation of the body whether physical, mental or
psychological, which is a deviation from the normal and is present
at birth.
25. A genetic malformation is an abnormality in the genes and
may manifest at birth or later in life or not at all. Congenital
malformation could be due to a number of causes which may be
genetic, environmental or a combination of both.
26. It is important to note that congenital malformation may be
minor, causing little or no impairment. For instance, the same
could be in the nature of a port wine stain of the face; an extra
nipple on the chest; a short fourth finger; an extra finger or other
abnormal facial or bodily features; formation of breasts in a male;
formation of male genitilia in a female etc.
Some such defects as in the nature of a cleft lip or a cleft
palate etc may be totally correctable. Other defects may cause
serious impairments as in the nature of mental retardation, severe
physical abnormalities, increased incidence of cancer etc.
27. It is also important to notice that existence of a particular
condition in a candidate would not ipso facto render such candidate
unfit for discharging the assigned duties in the service.
28. The meaning of the expression "congenital malformation" in
W.P.(C) No.7208/2008 page 12 of 58
the standards appointed by the respondents cannot be interpreted
generally or so broadly so as to include even such minor defects
that do not impact functional efficiency in any manner. The same
have to be of such a nature so as to impair the normal expected
functioning of an individual. There are occasions when a man may
develop female like breasts known as "gynaecomastia" and may
undergo surgical correction. The respondents would not assess
such a man as medically unfit for recruitment.
29. The respondents are conscious of these aspects and
consequently their guidelines carefully utilised the expression
"have" the defect which the examining doctor would give attention
to "while examining the candidate".
The aspects thus which are required to be kept in mind by the
medical experts while examining the candidate specifically state
that the candidates should not have a congenital malformation or
defect nor any disease of genito urinary tract at the time of
medical examination. The candidate presenting with such defects
to the doctor examining the candidate would require to be
rejected.
30. Learned counsel appearing for the respondents has also
drawn our attention to an extract of the Medical Recruitment
Rules which also manifest the above. It is pointed out that these
rules inter alia contain the following directions :-
"General Examination
3. While examining the candidates (he/she)
W.P.(C) No.7208/2008 page 13 of 58
principal points which need careful attention are as
under :
Xxx
(e) Should not have perceptible and visible glandular
swelling any where in the body.
Xxx
(k) Should not have congenital malformation or
defects.
Xxx
(n) He/She should have no disease of the genito
urinary tract."
31. These rules also contain certain 'General Grounds for
Rejection', the material terms and instructions for examination of
female candidates whereof read as follows :
"General Grounds for Rejection
4. Candidates (Male/Female) presenting with any of
the following conditions will be rejected :
Xxx
(q) Any congenital abnormality.
23. General instructions for examination of
female candidates
Xxx
2. Pregnancy at the time of PET will be a
disqualification and pregnant female candidates will be
rejected.
Female candidates should be properly examined for
any lump or diseases of breast, and Genitourinary
system after taking proper consent and in presence of
female attendants."
32. Perusal of these rules also show that the respondents have
themselves recognised that there may be certain conditions
rendering a person temporarily unfit or which may be correctable.
In para 22 of these rules relating to chronic skin diseases, the
respondents have stipulated that a candidate suffering from
pityriasis versicolor should be declared temporary unfit and advised
treatment for 2-3 weeks after which he/she should be reviewed. It
W.P.(C) No.7208/2008 page 14 of 58
is only if the candidate is not cured should he be rejected.
33. The respondents have also recognised that merely existence
of a particular condition may not render a person unfit for
recruitment. It notes that there may be defects which would not
interfere with the efficiency of a candidate as a soldier in the future.
In this regard, in para no. 5 of the medical recruitment rules, it is
stipulated as follows :-
"5. Acceptance of candidates suffering from
trifling defects :-
Candidates presenting with mild degree of the
following defects may be accepted :-
(a) Slight degree of varicocele
(b) Bowleg with separation of internal malleoli for less
than 7 cms. Slight curvature of leg is normal and can
be accepted.
(c) Slight knock knee with a separation of less than 5
cm of internal malleoli
(d) Perforation in the ear drum which has healed
and closed leaving a firm healthy scar provided there is
no hearing impairment.
(d) Healed trachoma without residual gross
deformity and no impaired vision
(e) Mild hammer toe
(f) Any other slight defect which in the opinion
of the Recruiting Medical Officer will not
interfere with the efficiency of a candidate as a
soldier in future.
The foregoing relaxation is permissible only in the case
of candidates who conform to the prescribed level of
measurements.
6. In all cases where a candidate suffering from a
trifling defect is accepted the Recruiting Medical Officer
should fully satisfy himself that the defect will not in
any way affect the efficiency of candidate as a SI and
the defects should be noted in the recruitment form."
34. The instructions relied upon by the respondents themselves
W.P.(C) No.7208/2008 page 15 of 58
prescribe that the prohibitted conditions and defects which must
exist on the date of the medical examination. The instructions use
the expressions 'have' and 'at the time of the examination'.
Conclusions of unfitness cannot rest on the past history alone or on
presumptions. Additionally, the respondents have prescribed
relaxations and provided that candidates presenting with mild
degree of the specified defects as well as any candidates suffering
from any other slight defect which in the opinion of the Recruiting
Medical Officer will not interfere with the efficiency of a candidate
as a soldier in future may be accepted.
35. The petitioner‟s treating specialist has stated that the
petitioner is having "Complete Androgen Insensitivity Syndrome"
('CAIS' hereafter). This is explained in medical literature which
points out that normally the child growing inside the mother
develops as a female child. The presence of the chromosome Y
(present in the genetic male child) causes the formation and
release of certain hormones and substances that help the growing
child to develop into a male child.
36. Medically, „sex‟ is considered to have various connotations
including the genetic sex, phenotypic sex and psychological sex.
Every person has 46 usual chromosomes and two sex
chromosomes. If a person has XX sex chromosomes, then one
develops as a female. If the person has an XY chromosome
combination, then one develops as a male. This is genetic sex, the
W.P.(C) No.7208/2008 page 16 of 58
genes determining which sex a person will be. This combination
results by activation of certain hormones at crucial stages of the
development process, resulting in various organs developing in a
particular manner resulting in the explicit features of a male child.
The other corollary is that the hormones must act on specific
receptors and internally produce the expected results. If the
internally expected results do not occur due to the resistance of the
receptors to the hormones in question, the result will still be a
female child despite the child having an XY-sex chromosome
structure. This outward manifestation of the sex that develops
from the internal expression of the sex chromosomes results in
what we call the „phenotypic sex‟.
37. To state this simply, to develop as a male, the hormones
produced must act on certain tissues which then manifest changes.
Absence of any response to the hormones results in the
development of female characteristics inspite of having an XY sex
chromosome structure.
38. So far as the petitioner is concerned, she has an XY-sex
chromosome profile. However, the hormones produced did not
result in the expected internal changes in the tissues that form
organs that specifically distinguish male from females. This could
be because the receptors on which they were to act were defective.
She was insensitive to the hormones produced. It was as if no
hormones were produced at all. So despite her genetic
W.P.(C) No.7208/2008 page 17 of 58
chromosome profile, she expressed phenotypically as a female.
She has also psychologically developed as a female.
39. Some rudimentary congenital defects, however, occurred later
in the petitioner. These included rudimentary (non-functional)
testes. As per her treating specialist, these rudimentary congenital
defects were removed („gonadectomy‟) and an artificial vagina
created surgically („vaginoplasty‟). It is an admitted position that
the petitioner had undergone the corrective surgery in the nature
of a gonadectomy. The specialist had confirmed that the petitioner
had no development of man-like sexual characteristic of her
genitilia. The doctor had observed that not only her condition was
compatible with any career which a woman could normally
undertake but she could even have a normal married life.
According to the medical documents and the expert report, the
defects thus stand surgically corrected. So any malformation which
had occurred, clearly stood corrected in the petitioner and was not
existing at the time of her medical examination.
40. The only difference now between the petitioner and any other
female thus is that she does not possess ovaries and so cannot
produce the female hormones. Due to this she has to be on long
term female sex hormone replacement therapy, which necessitates
the intake of one hormone replacement therapy tablet daily. All
other characteristics, physical and mental, are those of a normal
woman. There is no dispute to this fact.
W.P.(C) No.7208/2008 page 18 of 58
41. The respondents have declared Faizan Siddiqui medically
unfit for service because of a congenital anomaly even though she
met all the specified criteria for physical fitness.
42. We find that the petitioner has been labelled as a 'psuedo
hermaphrodite' in the medical examination dated 3 rd February,
2008 and the review medical examination on 25th April, 2008. Dr.
K. Bhushan, the ADG (Medicine) in his comments dated 28 th August,
2008 has gone further and labelled the petitioner as a 'true
hermaphodite'. These comments have an inherent contradiction.
In the counter affidavit, the respondents state that the
petitioner was declared unfit due to "congenital anomaly? Psuedo
hermaphrodism? Post operative Sequelea?" by the Recruitment
Medical Board. The petitioner was declared medically unfit as a
result of these comments.
43. Interestingly, none of the doctors, including Dr. K. Bhushan,
physically or medically examined the petitioner. The opinions are
also not rendered on any test(s) performed on the petitioner. No
investigation was effected. The opinions and findings do not make
any reference to any scientific texts in support. None of these
comments disclose the basis of such findings.
44. In the medical summary drawn up by Dr. V. Bhatia, the
treating specialist, clearly explained the petitioner's medical
condition; the surgery performed on her as well as her treatment
pointing out that the petitioner could even have a normal married
W.P.(C) No.7208/2008 page 19 of 58
life and her condition was compatible with any career a normal
women can undertake.
45. The Additional GM (M) has arrived at a conclusion that the
petitioner is not a fit candidate for recruitment in armed forces and
further concluded that upon failure to take the prescribed
medication, the petitioner "may develop serious illnesses and
change in her sexual characteristic". Admittedly, there is no
illness or condition at present. No basis for this conclusion is
disclosed.
Presumed side effects
46. The consideration by this court, however, cannot end here in
view of the position taken in the counter affidavit before this court.
In para 4 of the counter affidavit which is filed, the respondents
have contended that the ADG (Medical) of the CPMF opined that
the case of the petitioner was also examined by the Medical
Directorate of the respondents organization which was of the view
that as the applicant is regularly taking "cortisone and hormonal
medicine", it would have "adverse reaction in due course of time"
and shall "effect performance and endurance of individual" which
would not be good for the force. It has been concluded therefore
that she was not fit for combatised duties in the armed forces.
47. This stand in the counter affidavit is unfortunately also not
supported by any scientific study, material or explanation.
48. We have carefully scrutinised the record which has been
W.P.(C) No.7208/2008 page 20 of 58
produced before us. In addition to the aforenoticed certificate
dated 12th May, 2008 by Dr. V. Bhatia, we find that on the
petitioner's application for the review medical examination, Dr. V.
Bhatia has endorsed the abovenoted comments on 12 th February,
2008 clearly pointing out that the petitioner was only on female
hormone replacement therapy by a daily tablet. The prescriptions
placed before us show that the petitioner is taking 'lynoral' as the
medication prescribed from time to time.
49. No other material is available on record. There was therefore
nothing at all before the respondents to suggest that the petitioner
was required to take daily cortisone.
50. In view of the information disclosed by the respondents in
respect of the opinions of the medical boards as well as that of Dr.
K. Bhushan, the petitioner has placed a certificate dated 23 rd July,
2010 issued by her treating specialist Dr. V. Bhatia, again which
explains and certifies as follows :-
" To Whom It May Concern
23 July, 2010
This is to give information about the hormone
treatment that Faizan Siddiqui is receiving and
should continue to receive. She has been under my
care since 2002. She is on daily tablet of Lynoral,
which is a type of female hormone, estradiol. All
women have estradiol produced in their body by the
ovary. Those who have a deficiency, failure or
absence of the ovary must take the hormone in the
form of a medicine. Female hormone has beneficial
effects on the body, protecting and preserving
female characteristics as well as bone strength.
Estradiol is not cortisone or cortisol. In a person
who is deficient in estradiol, administration of the
W.P.(C) No.7208/2008 page 21 of 58
hormone by medical is not expressed to produce
any side effects. The tablet is very stable, and can
be purchased in bulk and stored in the house for a
year or more, till the expiry date on the tablet.
I am contactable for any clarification or help in
her matter.
Sd/-
Prof. Vijayalakshmi Bhatia"
(Emphasis supplied)
51. The counter affiavit refers to effects of "cortisone and
hormonal medicine" which "may result in due course of time".
There is no material which even remotely suggests that the
petitioner is taking "cortisone" as part of her treatment.
Additionally, there is no opinion of any doctor that the condition of
the petitioner or the medication has impacted her physical fitness
at the time of her medical examination, review examination or on
28th of August, 2008 when Dr. Bhushan has evaluated her condition
or when the counter affidavit was filed.
52. The petitioner is stated to be requiring a daily oral dose of
'lynoral'. The respondents have not made any scientific evaluation
of the side effects of this medication in CAIS inflicted individuals.
The medical literature placed before this court by the petitioner
would show that this is in the nature of an oral contraceptive and is
not a cortisone or a steroid. There is nothing to suggest that this
medication has adverse side affects on the medical fitness of a
personnel to perform duties which may be assigned to her in the
para military force.
W.P.(C) No.7208/2008 page 22 of 58
53. In the given facts, the respondents have considered 'lynoral'
as a 'cortisone' or 'steroid', which is technically incorrect. There is
nothing to support the expressed concerns about the debilitating
side effects of lynoral.
54. The likelihood of the occurrence of the side effect from
consumption of a prescribed medication and its severity may be a
relevant consideration for assessing whether the daily medication
would incapacitate the petitioner.
55. However, the respondents have defended their action on the
vague statement that the petitioner "may develop serious illness"
without even being aware of the medication being taken by the
petitioner or being informed about the illness which the petitioner
could suffer therefrom. It is trite that medical science is not a
definite science and that merely because a person is on prescribed
medication, there is no presumption that adverse side effects must
necessarily result. There is no basis disclosed for the view that the
petitioner's medication must necessarily result in any adverse
reaction or serious illness.
56. As a result of the erroneous assumption that the petitioner
had to take an oral dose of steroid, the respondents have obviously
arrived at a wrong conclusion of the consequential side effects.
The concerns of the respondents, thus, about the side effects of the
petitioner's medication also are pure conjectures without any
W.P.(C) No.7208/2008 page 23 of 58
scientific basis or evidence. Presumptions and innuendos of side
effects of medication which have no scientific basis cannot be a
ground for rejecting the candidature of a person for service. Clearly
the inexperience in the clinical management of Disorders of Sexual
Development (abbreviated as 'DSD') of the medical boards which
examined the petitioner has lead to the arbitrariness in the manner
in which the petitioner has been treated.
57. Learned counsel for the petitioner has pointed out that the
purpose of the prescribed daily medication is only for maintaining
the bone health of the petitioner and merely decreasing the risk of
osteoporosis. It has been urged that it is even unclear to medical
science, as to whether missing medication would result in the
likelihood of developing fractures.
Osteoporosis is associated with the tendency to increased
fractures. There is no confirmed study that compliance with the
HRT regime does not always relate to poor compliance with the
prescribed medication or to the timing of the gonadectomy. These
issues are still in the areas of scientific research.
It needs no elaboration that so far as bone health or
osteoporosis is concerned, there is nothing to suggest that the
same may not occur in a personnel who was not afflicted with CAIS
or was found without a medical problem at the time of recruitment.
58. Ms. Aakanksha Munjhal, learned counsel for the petitioner has
W.P.(C) No.7208/2008 page 24 of 58
also placed reliance on certain judicial pronouncements of courts in
other jurisdictions. Ms. Munjhal has referred to the judgment given
by the United States District Judge James Robertson of the United
States District Courts for the District of Columbia in Civil Action No.
05-1090 (JR) Diane J. Schroer vs. James H. Billington. This judgment
was rendered in a case where the petitioner was denied
employment by the Library of the Congress for the reason that she
was transitioning from male to female. Schroer was well qualified
for the job with which she had applied. At that time, she was
diagnosed with "gender identity disorder" and was working with a
licensed clinical social worker to develop a medically appropriate
plan for transitioning from male to female. Because she had not
yet begun presenting herself as a woman on a full-time basis, she
applied for the position as 'David J. Schroer', her legal name at that
time. She had proposed to begun the phase of her gender
transition and presenting as a woman on a full-time basis after her
interview and prior to joining the offered position.
59. It was held in this case that refusing to hire the petitioner
because of her appearance and background did not comport with
the decision maker's sex stereotypes about how men and women
should act and appear, and in response to Schroer's decision to
transition-legally, culturally, and physically, from male to female,
the Library of Congress violated Title VII's prohibition of sex
discrimination.
W.P.(C) No.7208/2008 page 25 of 58
60. Learned counsel also places reliance on the judgment dated
30th April, 1996 of the European Court of Justice in Case No. C-13/94
entitled P v S and Cornwall County Council. This case raised an
issue of dismissal of P on the ground of P's proposal to undergo
gender reassignment. The court reiterated that there should be no
discrimination arising on grounds of sex. The European Court also
reiterated its earlier held principle that the right not to be
discriminated on grounds of sex is one of the fundamental rights,
whose observance, the court has a duty to ensure. In this
background, the European Court of Justice observed as follows :-
"20. Accordingly, the scope of the directive cannot
be confined simply to discrimination based on the
fact that a person is of one or other sex. In view of
its purpose and the nature of the rights which it
seeks to safeguard, the scope of the directive is also
such as to apply to discrimination arising, as in this
case, from the gender reassignment of the person
concerned.
21. Such discrimination is based, essentially if not
exclusively, on the sex of the person concerned.
Where a person is dismissed on the ground that he
or she intends to undergo, or has undergone,
gender reassignment, he or she is treated
unfavourably by comparison with persons of the sex
to which he or she was deemed to belong before
undergoing gender reassignment.
22. To tolerate such discrimination would be
tantamount, as regards such a person, to a failure
to respect the dignity and freedom to which he or
she is entitled, and which the court has a duty to
safeguard."
61. Learned counsel for the petitioner has also drawn our
attention to the judgment dated 3rd April, 2008 of the United States
District Courts in Civil Action No. H-06-3999 entitled Izza Lopez
W.P.(C) No.7208/2008 page 26 of 58
a/k/a Raul Lopez v. River Oaks Imaging & Diagnostic Group, Inc. In
this case, a transgender job applicant was offered the position
which offer was rescinded because she had 'represented' herself as
a female'. The judgment was pronounced by Nancy F. Atlas,
District Judge holding that the petitioner had contended that there
was no legal duty to reveal her Gender Identity Disorder (GID) and
accordingly, her male biological sex, to a prospective employer,
absent evidence that her sex was a bonafide occupational
qualification for the position she applied for and was offered. It was
urged that rescinding the job offered on the ground that she was
transgendered was in violation of Title VII.
62. Title VII provides that "it shall be an unlawful employment
practice for an employer.....to discriminate against any
individual......because of such individual's ..... sex." Through
reference to case law, the contours of this prohibition against sex
discrimination had been defined to include discrimination against
individuals who fail to conform with traditional gender stereotypes.
In this case, the court concluded that the plaintiff had stated a
legally viable claim of discrimination as a male who failed to
confirm with traditional male stereotypes.
63. In the case in hand, there is no dispute that the petitioner is a
female candidate and has been so treated for all purposes. The
denial of employment is also not on such ground. The issue raised
in the instant case is that the respondents' conclusion of the
W.P.(C) No.7208/2008 page 27 of 58
petitioner's medical fitness is based on a complete
misunderstanding about her medical status and medication. The
above judgments would therefore have no relevance.
64. Learned counsel for the petitioner has also placed reliance on
the Extract from the Report on the World Social Situation,
1997, Chapter VIII of the United Nations Expert Group
Meeting on Managing Diversity in the Civil Service on the 3rd
and 4th May, 2001 at the UN Headquarters at New York. The report
has been presented by Larry Willmore from the United Nations
Department of Economic & Social Affairs in the context of persons
who have undergone sex change operations. In the instant case, it
is nobody's case that the petitioner had ever presented herself as a
male or that she has undergone a sex change operation.
65. In a given case, it may be urged that there is extrinsic
evidence to support the respondent's decision to exclude a
candidate as the petitioner from service. As noticed above, in the
instant case, the respondents have proceeded on a totally
erroneous basis so far as the petitioner's medical condition,
treatment and medication is concerned.
66. The medical summary by Dr. V. Bhatia was the only material
available to the doctors. Dr. Bhatia had repeatedly endorsed that
the petitioner was a normal female and would even be able to have
a normal married life though she would not be able to bear children
W.P.(C) No.7208/2008 page 28 of 58
in the natural way.
67. The comments of the said doctors who evaluated the
petitioner's fitness in the recruitment process clearly suggest that
no reliance was placed on Dr. V. Bhatia's evaluation.
68. The rejection of medical fitness of the petitioner premised on
observations that she is a "pseudo hermaphrodite" or "true
hermaphrodite" or suffering from "sequelae" or that the
petitioner's "sexual characteristics will change" thus are based on
no material, let alone relevant evidence or material and are
completely unsustainable from any angle.
(II) Whether the respondents decision to reject the petitioner's
candidature based on a congenital anomaly was actually connected
to the objective of medical fitness for service and therefore was not
discriminatory or arbitrary?
69. The Sashastra Seema Bal is a para military force which is
involved in securing the border states of the country. Its
personnel perform such tasks which can be fulfilled only by
physically fit personnel who are to be motivated by national
security. Therefore, the evaluation of a person's fitness has to
correlate to the objective of recruiting personnel who are able to
perform the rigorous duties assigned to them.
70. It needs no elaboration that there can be no compromise in
the standards of medical fitness inasmuch as national security has
to be placed on much higher pedestal than any interest of the
individual seeking recruitment.
W.P.(C) No.7208/2008 page 29 of 58
71. There can be no dispute at all that the respondents have the
right to prescribe recruitment criteria which would be motivated by
interests of national security. SSB is a paramilitary force involved
in securing the border states of India and its personnel perform
arduous tasks which can be fulfilled only by physically and mentally
fit personnel. Thus, so far as the intendment of the criteria is
concerned, it cannot be disputed that the same is a valid and a
clearly intelligible motive.
72. The question which the petitioner agitates is as to whether the
rejection of her candidature on the ground of medical unfitness had
any rational connection to the objective of recruiting fit personnel
who were able to withstand the rigors of service and that the
decision was not arbitrary. The respondents are therefore required
to show that it had taken a rational decision in concluding that the
petitioner's disorder would interfere with the duties assigned to a
female constable.
73. Learned counsel for the parties could place no specific rules,
regulations or guidelines with regard to persons who may have
suffered Disorders of Sex Development ('DSD') as the petitioner.
No instances could be placed of evaluation of their medical fitness
for recruitment.
74. We find however that instances of persons with DSD have
arisen and been considered by sports and athletic federations as
W.P.(C) No.7208/2008 page 30 of 58
well as military organisations in other jurisdictions. Several of them
have formulated polices to deal with such concerns.
75. Valuable light is shed on the consideration of similar issues by
international sports bodies. The respondents must confer
consideration on the issue and development of a fair approach in
dealing with recruits who may be diagnosed with the DSDs so far as
the norms which they must apply in India are concerned for
recruitment to the force.
76. The Consensus Statement on Intersex Disorders,
formulated at the International Intersex Consensus Conference,
states that all patients with 46, XY CAIS who are assigned female
sex in infancy identify as females. The petitioner is of the female
sex and so treated by the respondents. The developments did not
cause the petitioner to experience any psychological discomfort
that may afflict other persons as has been in issue qua other groups
including transgenders. (Ref: Summary of Consensus
Statement on Intersex Disorders and Their Management,
Pediatrics Vol 118 No.2, August 2006, pp. 753-757). We may
not be considered as having rendered an opinion on the eligibility
or fitness of transgendered persons in forces hereby as this is not in
issue before us.
77. The International Olympic Committee's Stockholm
Consensus Statement, has concluded that individuals who are
W.P.(C) No.7208/2008 page 31 of 58
diagnosed with androgen insensitivity disorder may compete as
females at sporting events if they so wish; and that androgen
insensitivity does not accord competitive advantage over other
women competitors. (Ref : Statement of the Stockholm
Consensus on Sex Reassignment in Sports, IOC Medical
Commission, 2003, available at:
http://www.fims.uwo.ca/NewMedia2008/page1772927.aspx.)
78. The International Olympic Committee allows even individuals
who have undergone sex reassignment from male to female after
puberty (and the converse) to be eligible for participation in female
or male competition, if the surgical anatomical changes have been
completed; legal recognition of assigned sex has been conferred by
appropriate authorities; and hormone therapy has been
administered for a verifiable amount of time so as to minimize
competitive advantage from gender reassignment, if any. The
Committee recommends that sportspersons should be eligible to
compete two years after gonadectomy. Every case will be
examined and evaluated confidentially in accordance with the
above policy. Thus as per the International Olympic Committee
of 2003; the Statement of the Stockholm Consensus on Sex
Reassignment in Sports, androgen insensitivity does not accord
competitive advantage over other women competitors and
individuals who are diagnosed with the androgen insensitivity
disorder may compete as females at sporting events if they so
W.P.(C) No.7208/2008 page 32 of 58
wish.
79. Several studies conducted by other governments contradict
the respondents‟ speculation of the medical and physical unfitness
of a CAIS afflicted person per se premised on such affliction. In
fact, the studies emphasise the similarity between individuals
diagnosed with CAIS and ordinary women.
80. It is noteworthy that the para military forces did not always
employ women candidates. This phenomena is relatively new and
the respondents have themselves prescribed special guidelines and
procedures for deployment of women personnel.
81. It is also necessary to understand the duties which are
assigned to women personnel in the force. Fitness is to be
evaluated in relation thereto.
82. Mr. A.K. Bhardwaj, learned counsel appearing for the
respondents has also placed before us the Guidelines in respect
of amenities/deployment of Mahila Coys in BSF/ITBP/SSB
issued by the Ministry of Home Affairs circulated in December,
2008. Perusal thereof would show that the respondents have
caused segregation of the SSB's mahila (female ) personnel by the
Combined Police Forces ('CPF' hereafter). These guidelines even
provide that women gazetted officers should accompany such
mahila personnel who are deployed for late night duties when they
return to the camp.
W.P.(C) No.7208/2008 page 33 of 58
83. The respondents have placed before this court the Circular
no.1/SSB/Ops/2008/2008(156)/1476-1551 dated 20th April,
2009 issued by the Ministry of Home Affairs of the Government of
India relating to the "deployment and duties" of the Mahila Coys of
the SSB. This Circular provides guidelines and lays down the
following essential duties to be assigned /performed by the Mahila
Company:-
(i) To carryout search/frisking of women at Integrated
Check Posts", Immigration points and trade routes and
at other places along the Indo-Nepal and Indo-Bhutan
borders.
(ii) To prevent trans-border trafficking of women and
children.
(iii ) To carryout relief and support activities in situations like
natural calamities, riots/communal flare-ups, elections
etc.and for providing succor to the victims.
(iv) To be kept as a striking reserve during festivals,
meetings, agitations etc.
(v) Static guard at SSB establishments as and when
required.
(vi To be deployed and discharge duties as ordered by
MHA/D.G., SSB from time to time.
(vii) As per MHA sanction order dated September 14, 2007,
the Mahila component will be deployed with minimum of
a Platoon strength. However, when deployed on static
guard duty in less sensitive areas, they may be in less
than a Platoon strength, provided their accommodation
is at a single place for the entire platoon. Mahila
personnel should not be accommodated in ones and
twos.
(viii) Female supervisory staff should be deployed alongwith
the Coys to the extent possible/available.
(ix) As far as possible, deployment during night hours should
be avoided. If unavoidable, proper arrangements
regarding security and logistics (especially toilets and
bathrooms)appropriate for women contigents should be
ensured.
(x) The Mahila Coys will undergo AIRT and other training
programmes as per the guidelines issued by the Training
Directorate from time to time.
W.P.(C) No.7208/2008 page 34 of 58
84. The above guidelines and circulars would show that the
respondents treat their women personnel as a special category and
have drawn a distinction between duties which would be assigned
to male and female candidates. The assessment of medical fitness
is also thus to rest on evaluation premised on this distinction.
85. The eligibility conditions for the post prescribed physical
standards in terms of height, weight and eye sight.
86. The recruitment notice states the following as part of selection
procedure :-
"4. Selection procedure :
(i) The eligible candidates shall be issued
Admit Card to appear in the recruitment test.
The date and place of recruitment test will be
indicated in Admit Card. Candidates will have
to undergo the following tests :
(a) Physical Measurement: Candidates found
eligible in documentation will be screened first for
height and weight measurements.
(b) Physical Efficiency Test(PET) (25 Marks):
The candidates who are found eligible as per
physical efficiency test consisting of following
events:-
i) 800 metre race in 4 minutes
ii) Long jump: 9 feet (3 chances will be given)
iii) High jump: 3 feet (3 chances will be given)
xxx
(v) Medical Examination
The candidates will be medically examined to
assess their physical and medical fitness as
prescribed in the eligibility conditions. Medical
examination will be conducted after the interview."
Additionally, the notified 'General Standards' required for
recruitment clearly stated as follows:-
W.P.(C) No.7208/2008 page 35 of 58
"Candidates must not have knock-knee, flat foot,
varicose vein or squint in eyes and they should
possess high colour vision. 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. They should conform to
the medical standards prescribed by the Force and
should be declared fit by the Medical Officers of the
SSB. The medical certificate obtained from
elsewhere will not be entertained. In the event of
any doubt or dispute decision of SSB shall be final."
(Underlining by us)
These standards are in consonance with the spirit and
intendment of the respondents to recruit persons capable of
discharging assigned functions. From the above discussion it is
evident that a congenital malformation may be present in a person
without causing any functional deficiency or disability or mental
abnormalities.
87. On this issue, the observations of the Supreme Court in Air
India vs. Nargesh Meerza reported at AIR 1981 SC 1829
placing reliance on earlier pronouncements including those of the
US Supreme Court while dealing with the factors to be considered
while fixing the retiring age of airhostesses (AH) may be usefully
adverted to and read as follows :-
"100. The next provision which has been the subject
matter of serious controversy between the
parties, is the one contained in regulation 46 (i) (c).
According to this provision, the normal age of
retirement of an AH is 35 years which may at the
option of the Managing Director be extended to 45
years subject to other conditions being satisfied. A
similar regulation is to be found in the Rules made
by the l.A.C. to which we shall refer hereafter. The
W.P.(C) No.7208/2008 page 36 of 58
question of fixation of retirement age of an AH is to
be decided by the authorities concerned after
taking into consideration various factors such
as the nature of the work, the prevailing
conditions, the practice prevalent in other
establishments and the like. In Imperial Chemical
Industries (India) Pvt. Ltd. v. The Workmen(1) this
Court pointed out that in fixing the age of retirement,
changing the terms and condition of service, the
determination of the age on industry-cum-region
basis would undoubtedly be a relevant factor.
In this connection, Gajendragadkar, J. made
the following further observations:
"There is no doubt that in fixing the age of
retirement no hard and fast rule can be laid down.
The decision on the question would always
depend on a proper assessment of the relevant
factors and may conceivably vary from case.
101. Similarly, in an earlier case in Guest, Keen,
Williams Pvt. Ltd. v. P. J. Sterling and
Ors.(1960) 1 SCR 348 : (AIR 1959 SC 1279) this
Court made the following observations (at p.1287 of
AIR):
"In fixing the age of superannuation industrial
tribunals have to take into account several
relevant factors. What is the nature of the work
assigned to the employees in the course of their
employment.. What is generally the practice
prevailing in the industry in the past in the
matter of retiring its employees '? These and other
relevant facts have to be weighed by the tribunal in
every case when it is called upon to fix an age of
superannuation in an industrial dispute."
102. It is, therefore, manifest that the factors to
be considered must be relevant and bear a close
nexus to the nature of the organisation and the duties
of the employees. Where the authority concerned
takes into account factors or circumstances which are
inherently irrational or illogical or tainted, the
decision fixing the age of retirement is open to
serious scrutiny."
(Emphasis supplied)
88. The standards prescribed by the respondents clearly prescribe
that any present medical defect or malformation that can
W.P.(C) No.7208/2008 page 37 of 58
reasonably impair the carrying out of the stated job description is
certainly valid, but anything more is clearly discriminatory and
unreasonable.
89. Medical standards needed for the performance of specific jobs
need to be rationally read and interpreted. Reasonable medical
standards help carrying out the required job functions with ease.
Insisting on or interpreting a medical condition or standard in a
manner that has no relationship with the level of medical fitness
required to perform the stated job description is really not
necessary and may even be discriminatory.
90. The record placed before this court also shows that the
respondents have noted that one of the reason for rejecting the
petitioner's candidature was that the persons diagnosed with CAIS
cannot bear children naturally which "may lead to adjustment
problems in latter life".
91. A reason for exclusion from service must bear a connection
with the prime consideration of fitness for the service. Infertility is
certainly not a listed ground for rejection of an individual's
candidature from the service. No such condition has been
stipulated for men or women candidates. The respondents rightly
do not suggest that CAIS related infertility status plays any part in
determination of the person's fitness or capacity for performing the
assigned duties with the SSB. That this fact and issue is irrelevant
W.P.(C) No.7208/2008 page 38 of 58
is apparent from the reality that the respondents also do not raise
this question when male candidates are be examined for fitness to
join the service.
In this background, it has to be held that infertility or inability
to bear children normally plays no role at all in determining fitness
for service.
92. The petitioner places reliance on several certificates of merit
secured by her in sports competitions in which she had participated
while at the Suman Singh Inter College at Allahabad in the year
2003. This was barely one year after the said surgery.
93. In fact, it is an admitted position that the petitioner has
successfully completed the physical efficiency test. The record
produced by the respondents before us contains the marks secured
by the candidates. This record discloses that even in the physical
efficiency test, written test and interview conducted as part of the
recruitment procedure, the petitioner was placed at the top in the
merit list which was drawn up by the respondents.
94. The medical examinations of the petitioner by the two boards
conducted by the respondents or even the highest authority which
have examined the same, do not state that the petitioner was
physically unfit for performance of any of the duties which may be
assigned to a mahila personnel in the SSB. The respondents also
do not rely on any scientific findings which even remotely suggest
W.P.(C) No.7208/2008 page 39 of 58
that a person who was affected with Complete Androgen
Insensitivity Syndrome ("CAIS" hereafter) has to be unfit to perform
the typical duties which would be assigned to the mahila personnel
in this force. Dr. K. Bhushan rests his conclusions on the baseless
presumption that the petitioner would be rendered unfit in the
future.
95. The respondents thus clearly do not conclude that persons
effected with CAIS are unable to perform the typical duties
entrusted to mahila SSB personnel which would have been the
relevant consideration for rejecting the petitioner's candidature.
The conclusions of the respondents therefore do not satisfy the test
of any nexus let alone a rational nexus to the objective sought to be
achieved.
96. There is no material at all to arrive at a conclusion that such
condition would have rendered the petitioner incapable of
performing the assigned duties.
(III) Whether the respondents appropriately evaluated the
material available with them, adopting requisite expertise.
97. It is well known that all professions have an hierarchy of
knowledge and functioning. Regarding a technical question
requiring expertise in, computer science engineering for instance,
it would be unreasonable for, say, a civil engineer to overturn a
decision of a computer science engineer. Also it would be
unreasonable for a computer science engineer of only, say, three
W.P.(C) No.7208/2008 page 40 of 58
years experience overturning the decision of another with fifteen
years experience, unless for good reasons.
98. As in all technical fields a different opinion needs to be
considered seriously only when given by a technical expert in the
same field of expertise and with a similar though perhaps a slightly
lesser degree of experience. Given the extreme variations in the
nature of knowledge involved, this is more so in medicine. In any
specialized field of medicine, one evolves by passing various
specialised professional degrees and by work experience, from a
simple physician to a specialist, and, then a super specialist.
Knowledge in medicine has become so vast that even super
specialist fields are splitting into sub-fields of knowledge and skill.
It follows therefore that a specialist opinion in the specialist's field
of expertise cannot be overturned by that of a family physician.
Similarly a super specialist's, say a nephrologist's opinion in the
field requiring special knowledge of nephrology, cannot be
overturned by a specialist of another field, say a gynaecologist, a
cardiologist or a neurologist.
99. We are informed that though there are no statutory standards,
however in medical sciences, the generally accepted standard of an
experienced super specialist in any super speciality is at least ten
years of work experience after acquiring the super specialist
degree. This would appear to be a reasonable standard. Only
such experienced specialist can venture a valid opinion different
W.P.(C) No.7208/2008 page 41 of 58
from that given by another super specialist in the same field.
Opinion of any one lesser, that is to say either of a specialist or a
super specialist of another field, or one in the same field but with
lesser years of experience, must simply be ignored and a proper
opinion from one who is of the same field with the same or some
minimum required years of experience be sought.
100. Similar issues with regard to the constitution of the medical
board to consider specific medical issues involving expertise and
specialization have arisen before the court on several occasions
prior hitherto. 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 who had suffered with a dermatology problem had
assailed the rejection inter alia on the ground that he had been
declared fit by a dermatologist of a recognized hospital of Delhi and
that he had wrongly been declared medically unfit by a Board of the
respondents which did not include a specialist of the required field.
Observations in para 4 of the judgment rendered on 14 th March,
2006 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
W.P.(C) No.7208/2008 page 42 of 58
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."
(Emphasis supplied)
101. In a decision rendered on 4th May, 2010 in W.P.(C) No.
13685/2010 Birendra Singh vs. UOI & Ors., the Division Bench
of this court, of which one of us, (Gita Mittal, J) was a member,
placing reliance on the prior decision in Anish Barla(supra), had
observed as follows :-
"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.
Xxx
29. It may be noted that amputation of a part of a
body may not in all cases be necessarily sufficient to
W.P.(C) No.7208/2008 page 43 of 58
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 persons 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.
xxx
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."
(Emphasis by us)
102. We find from the record placed before us that the medical
board on 3rd February, 2008 consisted of one chairman and four
members. Mr. Bhardwaj, learned counsel for the respondents, has
informed us that these four doctors possessed the MBBS degree
only, which is the basic medical qualification, without specialisation
in any field, let alone a super specialisation. While no anomaly was
detected by these doctors, they have endorsed that the petitioner
had "congenital anomaly & pseudohermaphroditism"
103. The Review Medical Board of the petitioner on 25 th April, 2008
W.P.(C) No.7208/2008 page 44 of 58
consisted of following two physicians :-
"(i) Chairman - Dr. Mamta Agarwal
2nd in-Command (Med),
CH, Gorakhpur,
(ii) Member - Dr. Urmila Gari
2nd in Command (Med)
CH, Barauni."
104. We are informed by Mr. Bhardwaj, learned for the respondents
that again both Dr. Mamta Aggarwal, Chairperson and Dr. Urmila
Gari, member also had the basic medical degree of MBBS only
without having specialisation in any field.
105. Dr. K. Bhushan, the Additional Director General CPMFs, MHA
who had rendered the opinion on the 28th of August, 2008 is stated
to be a psychologist and paediatrician.
106. Admittedly, so far as the evaluation of the petitioner's medical
condition is concerned, expertise in the field of endocrinology is
required.
107. Our attention is drawn to the communication dated 12th May,
2008 addressed by Professor Dr. V. Bhatia who was the treating
endocrinologist to Mr. Gopal Sharma, Director General of the SSB in
support of the petitioner's candidature and stating that the
petitioner "should not be declared medically unfit based on her
past history and if that has been the case, then she has been
discriminated against". The worthy doctor endorsed the
petitioner's medical summary and also informed the Director
General of the SSB that "if a second opinion on the medical issue
involved was necessary, the opinion be sought from an
W.P.(C) No.7208/2008 page 45 of 58
endocrinologist, department of Premier Institute such as All India
Institute of Medical Sciences or similar such institution".
108. An endocrinologist would normally possess the MBBS degree,
followed by an MD in general medicine or paediatrics‟ and then, a
DM in Endocrinology. This is coupled with the expertise acquired
from several years of practice in the field. Dr. Bhatia is holding the
designation of professor, and obviously additionally holds valuable
teaching experience in the speciality. To overturn such experts'
opinion, one would require a medical board consisting of at least
one, if not two, senior endocrinologists, having at least the equal
qualifications and practical experience in endocrinology, or, in any
case, more experience than that of the expert concerned. Thus the
endocrinologist's opinion in this case cannot simply be overturned
by a board of general physicians or a paediatrician/psychologist but
can only be overturned by a contrary majority opinion of a board
consisting of at least two senior endocrinologists. The opinion of
the physician having a basic MBBS degree with no specialized
training or experience in endocrinology, as in this case,
tantamounts to no opinion at all, or atleast, not a binding opinion.
109. The International Association of Athletic Federation
(IAAF) Policy on Gender Verification, IAAF and Anti-doping
Commission, 2006 clearly acknowledges that determining gender
of an athlete who may be afflicted with DSD is a sensitive and
complicated assessment where a laboratory based sex
W.P.(C) No.7208/2008 page 46 of 58
determination cannot be regarded as conclusive. Therefore, the
IAAF recommends that the panel making such a decision must
include a gynaecologist, endocrinologist, psychologist, internal
medicine specialist, and expert on gender/transgender issues.
Such is the seriousness which is attached by sporting bodies
to examination of athletes. Matters of employment and lives
certainly deserve as much, if not more attention and care.
110. In AIR 1981 SC 1829 Air India vs. Nargesh Meerza &
Ors., a challenge was laid to the validity of Regulation 46 as well as
Regulation 47 dealing with extension of service of the Air India
Employees Service Regulations and Regulation no. 12 of Indian
Airlines (Flying crew) Service Regulation prescribing the retiring age
of an air hostess of Air India upon attaining particular age or on
marriage, if it takes place within four years of service or on first
pregnancy was the subject matter of challenge and consideration
by the Supreme Court.
One of the main planks of challenge was that the termination
of the services of air hostesses on the ground of pregnancy or
marriage within four years is manifestly unreasonable and wholly
arbitrary and violative of Article 14 of the Constitution and should
therefore be struck down. It was also urged that the same
tantamounted to hostile discrimination by the corporation mainly
on the ground of sex or disabilities arising from sex and, therefore,
W.P.(C) No.7208/2008 page 47 of 58
the regulations amount to a clear infraction of the provisions of
Article 15(1) and Article 16(4) of the Constitution. It was held by
the court that the regulation providing for termination of services
on first pregnancy was wholly inconsistent and incongruous with
the concession given to the airhostesses by allowing them to marry.
Mr. Setalvad, appearing for the petitioner had cited a number of US
Supreme Court decisions. However, the Supreme Court of India
noticed the difference between Article 14, 15 and 16 of our
Constitution and the due process clause as well as the 14 th
Amendment of the American Constitution. In para 90 of the AIR
report, the Supreme Court of India endorsed the observations of the
US Supreme Court in Mary Ann Turner vs. Department of
Employment Security (1975) 46 L Ed 2nd 181 and held that the
US Supreme Court aptly applied to the facts of the present case (Air
India vs. Nargesh Meerza) and observed as follows :-
"90. We fully endorse the observations made by
the U.S.Supreme Court which, in our opinion, aptly
apply to the facts of the present case. By making
pregnancy a bar to continuance in service of an
AH the Corporation seems to have made an
individualised approach to a women's physical
capacity to continue her employment even after
pregnancy which undoubtedly is a most
unreasonable approach."
111. The reliance in Air India vs. Nargesh Meerza (supra) on a
decision of the US Supreme Courts in para 91 also sheds valuable
light on the issue raised before us and reads as follows :-
W.P.(C) No.7208/2008 page 48 of 58
"91. Similarly, very pregnant observations were
made by the U.S. Supreme Court in City of Los
Angeles, Department of Water and Power v. Marie
Manhar (1978) 55 L Ed 2d 657, thus:
" It is now well recognized that
employment decisions cannot be predicated on
mere 'stereotyped' impressions about the
characteristics of males or females. Myths and
purely habitual assumptions about a woman's
inability to perform certain kinds of work are no
longer acceptable reasons for refusing to
employ qualified individuals, or for paying them
less....The question, therefore, is whether the
existence or non-existence of "discrimination" is
to be determined by comparison of
class characteristics or individual
charcteristics. A 'stereotyped' answer to that
question may not be the same as the answer
that the language and purpose of the statute
command.
... ... ... ...
Even if the statutory language were less clear, the
basic policy of the statute requires that we focus
on fairness to individuals rather than fairness to
classes. Practices that classify employees in
terms of religion, race, or sex tend to preserve
traditional assumptions about groups rather
than thoughtful scrutiny of individuals."
92. These observations also apply to the bar
contained in the impugned regulation against
continuance of service after pregnancy. In Bombay
Labour Union v. International Franchises Pvt.
Ltd. (1966) 2 SCR 493 : (AIR 1966 SC 942), this
Court while dealing with a rule barring married
women from working in a particular concern
expressed views almost similar to the views taken
by the U.S. Supreme Court in the decisions
referred to above. In that case a particular rule
required that unmarried women were to give up
service on marriage-a rule which existed in the
Regulations of the Corporation also but appears
to have been deleted now. In criticizing the validity
of this rule this Court observed as follows (at pp.943,
944 of AIR):-
"We are not impressed by these reasons for
retaining a rule of this kind.... Nor do we think
that because the work has to be done as a team
it cannot be done by married women. We also
W.P.(C) No.7208/2008 page 49 of 58
feel that there is nothing to show that married
women would necessarily be more likely to be
absent than unmarried women or widows. If
it is the presence of children which may be said
to account for greater absenteeism among
married women, that would be so more or less
in the case of widows with children also. The fact
that the work has got to be done as a team and
presence of all those workmen is necessary, is
in our opinion no disqualification so far as
married women are concerned. It cannot be
disputed that even unmarried women or widows
are entitled to such leave as the respondent's
rules provide and they would be availing
themselves of these leave facilities."
112. So far as the instant case is concerned, the challenge
premises on violation of Article 14 of the Constitution of India, in Air
India vs. Nargesh Meerza (supra), the discussion of the prior
case law in paras 95 to 98 is extremely material and reads as
follows :-
"95. In view of our recent decision explaining the
scope of Art. 14, it has been held that any arbitrary
or unreasonable action or provision made by the
State cannot be upheld. In M/s. Dwarka Prasad
Laxmi Naraian v. The State of Uttar Pradesh
& Ors.1954 SCR 803: (AIR 1954 SC 224), this
Court made the following observations (at p. 227 of
of AIR):-
"Legislation, which arbitrarily or excessively
invades the right, cannot be said to
contain the quality of reasonableness,
and unless it strikes a proper balance
between the freedom guaranteed under
article 19(1)(g) and the social control
permitted by clause (6) of article 19, it must
be held to be wanting in
reasonableness."
96. In Maneka Gandhi v. Union of India (1978)
2 SCR 621 : (AIR 1978 SC 597), Beg, C.J. Observed
as follows (at pp 610, 611 of AIR):
W.P.(C) No.7208/2008 page 50 of 58
"The view I have taken above proceeds on
the assumption that there are inherent or
natural human rights of the individual
recognised by and embodied in our
Constitution..If either the reason sanctioned by
the law is absent, or the procedure followed
in arriving at the conclusion that such a reason
exists is unreasonable, the order having the
effect of deprivation or restriction must be
quashed." and Bhagwati, J. Observed thus (at
p.624 of AIR):
"Equality is a dynamic concept with many
aspects and dimensions and it cannot be
imprisoned within traditional and doctrinaire
limits.. Article 14 strikes at arbitrariness in
State action and ensures fairness and
equality of treatment. The principle of
reasonableness, which legally as well
as philosophically, is an essential element of
equality or non-arbitrariness pervades Article
14 like a brooding omnipresence.. It must be
"right and just and fair" and not arbitrary,
fanciful or oppressive; otherwise, it would be
no procedure at all and the requirement of
Article 21 would not be satisfied."
97. In an earlier case in E.P. Royappa v. State of
Tamil Nadu and Anr. (1974) 2 SCR 348 : (AIR
1974 SC 555), similar observations were made by
this Court thus (at p. 583 of AIR):
"In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a
republic, while the other, to the whim and
caprice of an absolute monarch. Where an act
is arbitrary, it is implicit in it that it is unequal
both according to political logic and
constitutional law and is therefore violative of
Article 14."
98. In State of Andhra Pradesh and Anr. v.
Nalla Raja Reddy and Ors.(1967) 3 SCR 28 : (AIR
1967 SC 1458) at P. 1468), this Court made the
following observations:
"Official arbitrariness is more subversive of
the doctrine of equality than statutory
discrimination. In respect of a statutory
discrimination one knows where he stands,
but the wand of official arbitrariness can
be waved in all directions indiscriminately."
W.P.(C) No.7208/2008 page 51 of 58
The impugned provisions appear to us to be a clear case
of official arbitrariness. As the impugned part of the
regulation is severable from the rest of the regulation,
it is not necessary for us to strike down the entire
Regulation."
113. The medical review board which made the final decision as
well as the additional director general of the respondents who
passed the order dated 28th August, 2000 regarding the petitioner‟s
medical fitness was obviously not qualified to deal with the DSD.
Their conclusions also show that they had no experience at all even
in clinical management of the DSD in view of their observations on
the medication which the petitioner was required to take.
114. The respondents‟ position with regard to the medical fitness of
the petitioner is clearly based on misinformation and speculation
which borders on ignorance. The medical experts of the
respondents did not honestly recognise their lack of expertise in
the given area. No medical review board was established with the
requisite expertise. The clear inexperience of the experts who have
given their opinion in the instant case has resulted in arbitrary
treatment of the petitioner. Apart from arbitrariness in the
conclusions arrived at, the same also tantamounts to violation of
the petitioner‟s right to fair procedure as prescripted by their
regulations and guidelines as well as judicial precedent for
evaluation and consideration of a candidature when she has been
deprived of service for which she was otherwise qualified.
115. It is noteworthy that in Birendra Singh (supra), the
W.P.(C) No.7208/2008 page 52 of 58
petitioner had assailed the action of the respondents in denying
him the appointment to the post of Sub-Inspector (Exe.) with the
Central Industrial Security Force and the order of the review
medical board holding the petitioner medically unfit for promotion.
Copy of the order was directed to be sent to the Secretary, Ministry
of Home Affairs and Director General, CISF.
The copy of this order was consequently sent to the Secretary,
Ministry of Home Affairs. In view of the observations of the court in
Anish Barla (supra) in 2006 and Birendra Singh (supra) in
2010, the consideration of the petitioner's case by the medical
boards is actually in violation of the specific directions by the court
or as is required for a fair assessment of the candidate.
116. It would therefore appear that the medical boards clearly
display complete arbitrariness in the assessment, valuation and
treatment of the petitioner by the respondents. In this background,
the petitioner cannot be deprived of employment based on findings
of such boards/experts not of the speciality concerned.
Conclusions
117. In view of the above discussion, it has to be held that the
rejection of the petitioner‟s candidature is based on sparse, highly
speculative and completely misinformed evidentiary record. The
same is not based on any intrinsic or extrinsic evidence at all.
There is no rational basis for concluding that the petitioner‟s
W.P.(C) No.7208/2008 page 53 of 58
appointment in any manner jeopardises or prejudices the Sashastra
Seema Bal‟s legitimate interest in recruiting physically and
mentally fit personnel to the force. The factual findings are based
on conjectures and speculation and are clearly erroneous.
118. We also find that there is no evidence as well to support the
respondent‟s conclusion to exclude the petitioner from service. The
respondents‟ decision can be sustained only if it has some
evidentiary basis therefore. The above narration would show that
the findings are speculative and contrary to the petitioner‟s medical
record.
119. The assessment by the respondents is also unsupported by
any factual evidence on record. Lynoral, the prescribed
medication, is a birth control pills is something which would
certainly be accessible. Maintaining a reliable supply of birth
control pills is not shown as a problem for any other recruit of the
force.
120. There is also no material to suggest that advance planning by
a personnel cannot compensate for non-availability of medication at
the border areas. The petitioner can certainly plan and procure
requisite medical supplies in advance.
121. For this reason, the respondents conclusion that SSB
personnel are posted in the remote border areas where there is a
difficulty in obtaining regular supply of medication or meeting
W.P.(C) No.7208/2008 page 54 of 58
deadlines or follow up appointments with physician is equally
presumptive and based on no objective consideration.
122. We also find that there was also no assessment at all by the
respondents as to the follow up or the medical assistance which a
CAIS patient needs. The female personnel of the force remain at
comparatively easier postings. The circulars placed by the
respondents would suggest that they are not posted at the remote
border outpost. The respondents do not even remotely suggest
that any of the SSB personnel have had any difficulty in accessing
birth control pills.
123. It is unfortunate that all doctors of the CPMF who have been
involved in reporting the petitioner's medical fitness in the
organisation have used expressions 'pseudohermophroditism'; 'true
hermaphrodite' and 'postoperative sequelea' as synonyms and
interchangeable without paying any heed at all to the petitioner's
medical condition or her fitness. The views of the treating expert
find no place in the consideration.
124. The above discussion amply establishes that there is also no
evidence at all nor any valid scientific explanation before the
respondents which could have enabled them to arrive at a
conclusion that CAIS afflicted individuals experience severe side
effects of the prescribed medication which would obviously effect
the individual's job performance.
125. The respondents have clearly misconstrued the effect of the
W.P.(C) No.7208/2008 page 55 of 58
medication. The respondents have urged that in the absence of
medication, the petitioner‟s "sexual characteristics will change".
This assertion has not been supported by any scientific study or
expert‟s opinion. We are appalled at the expression of such an
opinion by medical experts, who though not of the speciality
concerned, as doctors are expected to be trained to honestly
accept limitations of their expertise or knowledge and to take the
assistance of experts before rendering opinions which severally
impact lives of parties.
126. We may also note that the purpose of a medical examination
is not to create a body of persons in the community who have been
labelled as "medically unfit" without any material or basis.
Undoubtedly, definite State policy and positive action in this matter
is immediately necessary inasmuch as there is growing awareness
of issues as have been raised in the present case. The instant case
also discloses the insufficiency of the regulations and guidelines on
medical examinations by the respondents.
127. In this background, the decision of the respondents is based
on no material at all let alone any relevant material.
128. We have no hesitation in holding that the findings of the
respondents are speculative and have no relation or nexus to the
goal of national security. The decision holding the petitioner has to
be held to be completely arbitrary and irrational.
W.P.(C) No.7208/2008 page 56 of 58
129. It is evident that an expert endocrinologist has certified that
the petitioner is entirely capable of performing the duties of a
mahila SSB constable. The medical doctors of the respondents who
have conducted the medical examination have found no anomaly,
no growth, no disability and no psychological impact at all on the
petitioner. On the contrary, she has ably acquitted herself in the
qualifying test conducted by the respondents. The respondents
have also not arrived at any conclusion that she is incapable of
performing the assigned duties. The petitioner's appointment even
as per the respondents does not undermine the requirements of the
duties to be performed by the SSB. In this background, the
candidature of the petitioner certainly cannot be rejected on the
sole ground that she had been previously diagnosed with complete
androgen insensitivity syndrome and has undergone medical
procedures for certain developments or merely because she is on
medication admittedly without any side effects.
130. Unfortunately, while the petitioner has been making
representations and has been compelled to seek redressal from this
court, almost three years have passed since she underwent the
review medical board on 25th April, 2008. In this background, while
holding that the petitioner's candidature cannot be rejected on the
said ground, it cannot be denied that the respondents would be
entitled to ascertain her physical efficiency. Service personnel have
to periodically undergo such testing.
W.P.(C) No.7208/2008 page 57 of 58
131. In view of the above discussion, it is held and directed as
follows:-
(i) The rejection of the petitioner's candidature for the post of
constable general duty in the Sashastra Seema Bal on grounds of
medical un-fitness in the medical examinations conducted on 3rd
February, 2008 and 25th April, 2008 as well as the findings dated
28th August, 2008 of Dr. K. Bhushan, Additional Director General,
CPMFs Ministry of Home Affairs are arbitrary, irrational and illegal
and hereby quashed.
(ii) The respondents shall evaluate the physical standards of the
petitioner and also conduct a physical efficiency test of the
petitioner within a period of three months from today, after giving
the petitioner at least two months notice of the date and time of the
examination and test. If the petitioner clears the same, the
petitioner would be held entitled to forthwith recruitment into the
Sashastra Seema Bal.
(iii) The petitioner shall be entitled to costs of the present petition
which are assessed at Rs.25,000/- and shall be paid within eight
weeks from today.
The writ petition is allowed in the above terms.
GITA MITTAL, J
May 3, 2011(aa) J.R. MIDHA, J
W.P.(C) No.7208/2008 page 58 of 58
