Amardeep Singh vs Union Of India & Ors.
2011 Latest Caselaw 5523 Del

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.7711/2011

%                           Date of Decision: 17.11.2011


Amardeep Singh                                               .... Petitioner

                         Through   Mr. Rais Farooqui & Mr. S.Akbar Abdi,
                                   Advocates


                                   Versus


Union of India & Ors.                                      .... Respondents

                         Through Mr. Himanshu Bajaj,        Advocate     for
                                 respondent Nos.1 to 3


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

* CM No. 17471/2011

Allowed subject to all just exceptions.

WP(C) No. 7711/2011

1. The petitioner has sought direction against the respondents to

appoint him to the post of Constable-GD in BSF, CISF, SSB and CRP-

2011 and to quash the review medical examination held on 17th October

2011 of the petitioner at SSB Academy, Srinagar, District Pauri

Garhwal as well as a direction to the respondent to constitute a special

medical board for the medical examination of the fitness of the

petitioner.

2. The brief facts to comprehend the dispute between the parties are

that respondent no.2, The Staff selection Commission (N/R), invited

applications online for the recruitment to the Post of Constable (GD) in

BSF, CISF, SSB & CRPF in the month of January, 2011. Pursuant to

which the petitioner submitted his application seeking combined

recruitment for the post of Constable-GD. The petitioner was called for

the physical test at the CRPF Camp, New Delhi and was given the Roll

No. 2002000342. On 21st April, 2011 the petitioner appeared for the

physical test and also qualified the same.

3. After the physical test, an admit card was issued for the written

test at the Recruitment Centre Sh.Guru Ram Public School, Bindal,

Khurbura Mohalla, Dehradun (Uttrakhand) on 5th June, 2011, for

which the petitioner duly appeared for direct recruitment under the

general category. The petitioner qualified the physical and the written

examination. Thereafter, the petitioner was called for medical test and

he was directed to appear on 27th July, 2011 at the Medical Centre at

SSB Academy, Srinagar, District Pauri Garhwal, Uttaranchal -246174.

After his medical examination, a memorandum was given on 30th July,

2011 declaring the petitioner unfit due to the specified reasons of : i)

Varicose Vein Rt. side; ii) Drooping Lt. shoulder and iii) Increased

Carrying Angle Lt. side.

4. The petitioner contended that he was asked to get operated and

obtain the necessary medical certificate from the medical practitioner

and file an appeal for review of the medical examination, which had to

be submitted within a period of 15 days from the date of the

memorandum, and positively by 13th August, 2011, failing which his

candidature for the said recruitment would be treated as cancelled

without any further notice.

5. According to the petitioner, he approached B.L.Sharma, District

Hospital, Meerut, UP and got a minor surgery/operation done on 2nd

August, 2011 for the Varicose Vein Rt. side. Consequently, he was

declared medically fit and was also issued a fitness certificate by the

District Hospital, Meerut. The petitioner, therefore, sent an appeal on

3rd August, 2011 through registered post requesting a review of the

medical examination, along with the medical certificate stating that the

petitioner was operated for Varicose Vain Rt. Side on 2nd August, 2011

and that now he is fit. The certificate was issued by Dr.V.P.Singh having

Registration No.28338 and it also noted that there could be an error in

judgment regarding the Drooping Lt. side Shoulder and Increased

Carrying Angle Lt. side.

6. Pursuant to the appeal, and the medical certificate submitted by

the petitioner, he was called for review medical examination by letter

dated 1st October, 2011 on 17th October, 2011 at the office of the

Director, SSB Academy, Srinagar, District Pauri Garhwal (Uttrakhand).

However, even after the review medical examination, the petitioner was

declared unfit on account of "Varicose Vein operated". Regarding the

unfitness of the petitioner on account of the Drooping Lt. side shoulder

and the Increased Carrying Angle Lt. side which was cited in the earlier

examination, it was stated that there is "no significant Drooping and no

significant Carrying Angle".

7. The petitioner has contended that the "Varicose Vein" is not a

serious ailment or defect and that he was not having any problem, as it

is apparent from the facts that he had obtained the first position in the

physical test conducted by the respondents at the CRPF camp on 21st

April, 2011. However, since he was advised during the medical

examination to get the operation done, he got himself operated for

minor surgery and thereafter he is fit and has no problem at all. The

plea of the petitioner is that declaring him unfit on the sole ground that

"Varicose Vein Operated" is arbitrary, mala fide, biased and without

application of medical rule of fitness. Hence in the circumstances, it

ought to be held that the petitioner is medically fit for the recruitment

for the post of Constable (GD) in BSF, CISF, SSB and CRPF. The

petitioner also asserted that he is of a tender age of 21 years and that

his entire career shall be spoiled in case he is not given an opportunity

for appointment inspite of being fit.

8. The learned counsel for the respondents, Mr.Bajaj, who appears

on an advanced notice has produced the Uniform Guidelines for

Medical Examination Test (MET) for Combined Recruitment of

Constable/GD in CARFs and ARs. The said guidelines in para 20 (z)

stipulates the conditions about the Varicose Vein which is a ground for

rejection under the said guidelines. Para 20 (z) of the said guidelines is

as under;-

"(z). Varicose Vein. The diagnosis of varicose vein should be made on the basis of dilatation and tortuosity of veins. Only prominence of veins should not be criteria for rejection. Operated cases of Varicose Veins should not be accepted".

The guidelines in para 72 (f) deals with Varicocele Vein which is

as under:

"(i) Mild degree of varicocele in the left side uncomplicated and symptoms less should not be a bar to acceptance in an otherwise healthy individual.

(ii) Moderate to severe degree of varicocele on the left side without any Testicular atrophy will be rejected.

(iii) Varicocele on the left side with the atrophy will be rejected.

(iv) Right sided varicocele of any degree will be declared unfit."

9. The guidelines have also been framed for review by the medical

board and para 3(c) of the guidelines for review by the medical board

stipulates as follows:

"3(c) for vascular defects like Varicose Vain malformation colour doppler should be carried out."

10. Learned counsel for the respondents, Mr.Bajaj, has also

emphatically contended that in the notice dated 4th March, 2011 for

Recruitment of Constables in Central Police Forces, 2010 para (IV) titled

as Medical Examination sub para (iii) specifically states that the

medical standard required is that the candidates must not have

Varicose Vein.

11. Learned counsel has also refuted the plea raised on behalf of the

petitioner that after his medical examination dated 30th July, 2011, the

petitioner was asked to undergo operation for correction of the Varicose

Vein on the right leg. Learned counsel has contended that since the

guidelines for medical standards categorically stipulates that operated

case of Varicose Vein will not be accepted, no one would have advised

the petitioner to undergo a surgical procedure for correction of the

Varicose Vein as it could not to be accepted.

12. This Court has heard the learned counsel for the parties in detail.

This cannot be disputed that in the notice dated 4th March, 2011, it is

specifically stipulated in para (IV) (iii) (b) that the candidate must not

have Varicose Vein. Uniform Guidelines as detailed hereinabove also

categorically lays down that operated case of Varicose Vein shall not be

accepted and that the diagnosis of Varicose Vein is to be made on the

basis of the dilatation and tortuosity of the vein and not on account of

prominence of the vein.

13. The petitioner has not refuted and cannot refute that Varicose

Vein on Rt. side in him was detected on the basis of the parameters

provided under the uniform guidelines.

14. Learned counsel for the petitioner is unable to disclose as to who

had advised the petitioner to undergo the surgical procedure for

correction of Varicose Vein on his Rt. side. Besides making a generic

allegation that he had been advised to undergo surgical procedure, the

petitioner has not imputed the said advice to any particular official of

the respondent. In any case, it is not believable that despite knowing

that the Varicose Vein being corrected by surgical procedure would not

render the petitioner fit, any responsible officer of the respondents

would advise the petitioner contrary to the medical standards laid down

in the uniform policy.

15. The plea of learned counsel for the petitioner that Varicose Vein

Rt. side is not a serious ailment or defect, which is apparent from the

fact that in the physical fitness test taken by the respondents the

petitioner had performed very well, is irrelevant since the uniform policy

as well as the notice dated 4th March, 2011 clearly puts a bar on

candidates having Varicose Vein. Also, the said notice and policy laid

down by the respondents has not been challenged by the petitioner. In

any case, this Court in exercise of its jurisdiction under Article 226 of

the Constitution of India does not sit as a court of appeal over the

standards of medical fitness laid down by the respondents, but merely

reviews the medical examination in which the decision is made. No

ground has been raised on behalf of the petitioner challenging the

medical examination with regard to the medical fitness parameters not

being applied in case of the petitioner. The wisdom, advisability and

relevance of the medical fitness parameters and standards laid down by

the respondents for recruitment is ordinarily not amenable to judicial

review, unless it can be demonstrated that the medical parameters for

not selecting a candidate have been applied contrary to any of the rules

and regulations or any statutory provision. The High Court in the facts

and circumstances does not have to consider the facts that despite

having Varicose Vein Rt. side, which is a factor for declaring the

petitioner unfit for recruitment, it should not be considered as a ground

for medical unfitness, since the petitioner performed well in the physical

test conducted by the respondent. The respondents are entitled to take

any policy decisions which may be necessary as per the requirements of

the forces, and it is not for the courts to deem them to be un-pragmatic

subject to peculiar circumstances to each case.

16. This is no more res-integra that in policy matters this Court has a

very limited scope of interference. In Tamil Nadu Education Dept.,

Ministerial and General Subordinate Services Association v. State of

Tamil Nadu and Ors., MANU/SC/0480/1979, the Supreme Court while

examining the scope of interference by the Courts in public policy held

that the Court cannot strike down a circular/Government Order or a

policy merely because there is a variation or contradiction. The Court

observed: "Life is sometimes a contradiction and even inconsistency is

not always a virtue. What is important is to know whether mala fides

vitiates or irrational and extraneous factors fouls the case.". In that

decision that Court also observed:

"Once, the principle is found to be rational, the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy. Every cause claims a martyr and however, unhappy we be to see the seniors of yesterday becoming the juniors of today, this is an area where, absent arbitrariness and irrationality, the Court has to adopt a hands-off policy."

17. A similar view has been reiterated in Delhi Science Forum and

Ors. v. Union of India and Anr., MANU/SC/0360/1996; UP. Katha

Factories Association v. State of U.P. and Ors., MANU/SC/0494/1996;

and Rameshwar Prasad v. Managing Director, U.P. Rajkiya Nirman

Nigam Limited and Ors. MANU/SC/0580/1999. In Netai Bag and Ors.

v. State of West Bengal and Ors., MANU/SC/0604/2000, the Supreme

Court observed:

"The Court cannot strike down a policy decision taken by the government merely because it feels that another decision would have been fairer or wiser or more scientific or logical."

18. The Government is entitled to make pragmatic adjustments and

policy decisions which may be necessary or called for under the

prevalent peculiar circumstances. While deciding the said case, the

Court referred to and relied upon its earlier judgments in State of

Madhya Pradesh v. Nandlal Jaiswal, MANU/SC/0034/1986 and

Sachidanand Pandey v. State of West Bengal, MANU/SC/0136/1987, in

which the Court held that judicial interference with policy decision is

permissible only if the decision is shown to be patently arbitrary,

discriminatory or mala fide. A similar view has been reiterated in Union

of India and Ors. v. Dinesh Engineering Corporation and Anr.

MANU/SC/0575/2001. In Ugar Sugar Works Ltd. v. Delhi

Administration and Ors. MANU/SC/0189/2001, it has been held that

in exercise of the powers of judicial review, the Courts do not ordinarily

interfere with policy decisions of the executive unless the policy can be

faulted on the ground of mala fide, unreasonableness, arbitrariness or

unfairness etc. If the policy cannot be touched on any of these grounds,

the mere fact that it may affect the interests of a party does not justify

invalidating the policy.

19. In the circumstances, the plea of the learned counsel for the

petitioner that Varicose Vein Rt. side, which had been corrected by

surgical procedure, should not be a ground for declaring the petitioner

to be medically unfit, cannot be accepted. If the petitioner is medically

unfit, according to the uniform guidelines of medical standards laid

down by the respondents, the petitioner is not entitled for any direction

against the respondents to enlist him to the post of Constable (GD) as

has been prayed for by the petitioner. Also there are no grounds for

quashing the review medical examination conducted on 17th October,

2011 holding that the petitioner is medically unfit on account of

Varicose Vein Rt. side being corrected by surgery. No cogent grounds

have even contended for directing the respondents to constitute a

special medical board for the medical examination to ascertain the

fitness of the petitioner. This has not been disputed that the petitioner

has Varicose Vein Rt. side and that it's correction by surgical procedure

cannot be accepted, contrary to the yardstick laid down by the

respondents as the medical fitness standards.

20. No other point has been urged on behalf of the petitioner. In the

circumstances, the petitioner is not entitled for any direction to the

respondents as prayed by him.

21. The writ petition in the facts and circumstances is without any

merit and it is therefore, dismissed.

CM No. 17470/2011

Since the writ petition of the petitioner has been dismissed, the

petitioner is not entitled for any direction as prayed by him.

The application for direction is, therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

November 17, 2011.

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