Mr.Devinder vs Border Security Force & Anr.
2011 Latest Caselaw 5570 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.8130/2011


%                       Date of Decision: 18.11.2011.


Mr.Devinder                                               .... Petitioner

                     Through Ms.Jasvinder Kaur with Col.S.K.Singh,
                             Advocates.


                                 Versus


Border Security Force & Anr.                            .... Respondents

                     Through Mr.Jatan Singh, Central Government
                             Standing Counsel with Mr.Prashant
                             Ghai, Advocate.



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


ANIL KUMAR, J.

*

1. The petitioner has sought quashing of order dated 16th December,

2010, rejecting his candidature to the post of Head Constable (Min.) in

the Border Security Force and the order dated 25th March, 2011 of the

Review Medical Board holding the petitioner unfit for the said post on

account of the petitioner having „knock knees‟.

2. The petitioner had applied for the post of Head Constable

(Ministerial) in the BSF pursuant to an advertisement given in the

employment newspaper. The application of the petitioner was accepted

and he was allotted roll number 11607193. The petitioner appeared in

the written test on 19th September, 2010. Thereafter, he was asked to

appear for the physical test on 30th November, 2010.

3. According to the petitioner, in the physical test he was found fit

as his physical endurance, height, chest and eye sight was found to

meet the minimum requirement. The petitioner thereafter, appeared in

the typing test on 5th December, 2010 and the computer proficiency test

on 9th December, 2010.

4. The petitioner was medically examined on 16th December, 2010 at

the Unit Hospital, 33 Batallion BSF, Hissar. Pursuant to the medical

examination, the petitioner was declared unfit on account of having

"knock knees". By the order dated 16th December, 2010 the petitioner

was declared medically unfit, however, he was permitted to file an

appeal against the finding of the medical examination before the review

medical examination board after obtaining the necessary medical

fitness certificate from a medical Practitioner (Specialist in the

concerned field). The petitioner had to submit the same within one

month from the date of the order of medical board dated 16th December,

2010.

5. The petitioner, thereafter got himself re-examined on 6th January,

2011 at the Safdarjung Hospital, Delhi by Dr.R.K.Wadhwa, CMO

(NFSG), Rehabilitation Department. At Safdarjung Hospital, the

petitioner was found to be medically fit and a certificate was issued to

that effect which was submitted by the petitioner to the respondents.

The said certificate stated that declaring the petitioner having `knock

knees‟ was an error of judgment.

6. Consequent to the submission of the medical fitness certificate for

a review medical board, the petitioner was re-examined at the

Composite Hospital, Border Security Force, Jalandhar Cantt on 24th

March, 2011. After re-examining the petitioner, he was again declared

as medically unfit on account of „knock knees‟.

7. The petitioner has challenged his unfitness on account of „knock

knee‟, inter-alia, on the ground that the medical board and the review

medical board did not give any attention to the detailed process that is

required to be performed in order to infer the definite conclusion

regarding „knock knees‟. The petitioner relied on the decision of a

Coordinate Bench in W.P(C) No.5469/2011 titled as „Samandar Singh v.

Union of India & Ors.‟ decided on 2nd August, 2011 holding that the

empirical facts, based on which an opinion is rendered, should be

penned by the doctors so that the Court or any other forum is able to

understand the reasoning of the medical board for declaring a

candidate medically unfit especially as the detailed procedure for

ascertaining the physical parameters are provided under the uniform

guidelines of the respondents. The Court in the said order had observed

that the earlier writ petitions were disposed of directing the respondents

to conduct medical examination of such candidates in whose cases

there were no empirical data available, at the Army (Research and

Referral) Hospital, Delhi Cantonment.

8. The petitioner also challenged declaring him unfit on the account

of „knock knees‟ on the ground that the medical examination conducted

on him at the Safdarjung Hospital did not find any deformity with him,

rather he was given a medical fitness certificate endorsing his medical

fitness and declaring that holding the petitioner medically unfit is an

error of judgment. The petitioner asserted that the review medical board

had not even taken into consideration the other fitness certificate given

by the other hospital prior to the medical examination by the review

medical board. The petitioner has contended that there is no delay in

seeking the relief in terms of the decision of this Court in the case of

Samandar Singh (Supra) who was also rejected on the ground of „knock

knees‟ and in whose case the matter was referred to Research and

Referral Hospital where the said candidate was declared medically fit. In

the circumstances, it is contended that the petitioner was declared

medically unfit mechanically and that the review medical board had

only reconfirmed his unfitness in a mechanical manner, despite a

medical fitness certificate by the Safdarjung Hospital, merely with a

view to confirm its earlier finding.

9. The learned counsel, Mr.Jatan Singh, Central Government

Standing counsel has appeared pursuant to advance notice served on

the respondents and has produced the Dossier file of the petitioner. He

has contended that the petitioner was declared unfit on account of

„knock knees‟. Even after the review medical board, the petitioner was

found to have „knock knees‟ which is a ground for holding a candidate

unfit and, therefore, the petitioner is not entitled for any directions as

sought by him. He also contended that the certificate obtained by the

petitioner from the Safdarjung Hospital also does not detail as to how

the test was done to ascertain whether the petitioner has „knock knees‟

or not and as to how there was an error of judgment in assessment by

the medical board of the respondents.

10. This Court has heard the learned counsel for the parties. This has

not been disputed and cannot be disputed that in the case of Samandar

Singh (supra) a Division Bench of this Court had held that the

observations made by the Court in different writ petitions have been

consistently ignored by the doctors of BSF, CISF as well as CRPF. The

Court had been advising the doctors that the empirical facts should be

penned or incorporated in their report declaring a candidate fit or unfit,

so that the Court may perceive the reasons for declaring a candidate

ineligible on account of medical unfitness. The Court had also held that

it becomes more difficult in cases where there is a contradictory opinion

from a Civil Hospital holding a candidate medically fit, which opinion is

obtained after due medical examination pursuant to a right given to a

candidate to file an appeal within the parameters provided by the

respondents. The observations made by a Coordinate Bench in the case

of Samandar Singh (supra) are as under:-

"10. We have been advising that the empirical facts based whereon the opinion is rendered should be penned by the doctors so that this Court, or for that matter any other Court where the lis is brought, is able to understand the problem. As in the present case, the BSF doctors continue to record that the petitioner is knock knee and the petitioner has with him a contra opinion from a Civil Hospital where the doctor has opined that the petitioner is not knock knee. There is just no empirical data for the Court to look into the issue within the scope of a judicial review jurisdiction i.e. whether at all, the opinions are based on some empirical fact or are the opinions ipse-dixit of the opinion maker."

11. Perusal of the Uniform Guidelines for MET of CT (GD) in CAPFs

and ARs reveals that "mild knock knee inter maleolar distance 5 cms or

less" is a minor acceptable defect. The said guidelines also incorporate

in para 23 that the candidates declared unfit or rejected should be

politely explained in detail about the cause of their rejection/disability

so that they do not carry any wrong impression about the procedure.

The said guidelines also provide procedure for ascertaining the knock

knee in paragraph 51 which is as under:-

"51 Knock Knee: The candidate is made to sit on a stool with lower limbs hanging loose. The Assistant then holds up the feet and approximates the medical condyles and distance between the malleoli is measured. Measurement exceeding 5 cms is a cause of rejection as knock knee. Second method for examination of knock knee is to ask candidate to lie flat on the ground with the lower limbs keeping loose. The assistant then lifts up the feet and approximates the medical condyles. The distance between the internal malleoli is then measured with the help of a card."

12. From the order dated 16th December, 2010 it is apparent that

though the petitioner had been declared unfit on account of „knock

knee‟, however, no other details had been given. Even the Civil Hospital

certificate does not give any reason to hold the petitioner medically fit.

The certificate issued by the Safdarjung Hospital stipulates that the

concerned doctor was aware that the petitioner had been declared

medically unfit for the post of Assistant Sub Inspector (Steno)/ Head

Constable (Ministerial) in the Border Security Force and it was also

categorically noted that the opinion declaring the petitioner medically

unfit is an error of judgment but, how is it an error of judgment has not

been disclosed.

13. Moreover, the review medical board, without considering the

yardsticks laid down for declaring a candidate medically unfit on

account of `knock knees‟ and despite a certificate from the Safdarjung

Hospital holding the petitioner medically fit on the ground of „knock

knee‟, without disclosing any relevant facts or reasons again held the

petitioner to be medically unfit. In similar circumstances, the other

bench of this Court had passed the following orders:-

"11. The past practice followed by various Benches of this Court, noting that no empirical facts were before the Court, was to dispose of the writ petition with consent requiring the candidate concerned to be subjected to a medical examination at the Army (Research and Referral) Hospital, Delhi Cantonment with further consent recorded that opinion rendered by the doctors would bind the parties.

12. We follow the same precedent and thus dispose of the writ petition directing that the respondents would get in touch with the Commandant of the Army (Research and Referral) Hospital, Delhi Cantonment and would obtain a date when a medical board, consisting of at least 3 doctors, all of whom would be experts in the field of Orthopaedics, would examine the petitioner.

13. The Commandant of Army (Research and Referral) Hospital would indicate the date well in advance so that the petitioner can be informed of the date when he would appear before the Board.

14. On the date when the petitioner would appear before the Board, records with the respondents pertaining to the first medical examination as also the review medical examination conducted would be handed over to the Board by the respondents and likewise the petitioner would hand- over to the Board such documents which he has, pertaining to his medical examination at the Civil Hospital, Rewari."

14. In the circumstances, two medical opinions without any empirical

data holds petitioner unfit on account of „knock knee‟ and one medical

opinion holds him medically fit. Therefore, it is just and appropriate to

subject the petitioner to another medical examination to be conducted

at the Army (Research and Referral) Hospital, Delhi Cantonment. For

this purpose, the respondents would obtain a date with the medical

board consisting of at least three doctors of the Army (Research and

Referral) Hospital, Delhi Cantonment who will examine the petitioner to

opine whether he has `knock knee‟ as per the parameters laid down by

the respondents. The date for the medical examination of the petitioner

will be communicated to the petitioner well in advance so that the

petitioner could appear before the board on the date and time

communicated by the respondents. Before the medical board of the

Army (R&R) Hospital, Delhi Cantonment, the relevant record of the

petitioner, that is, the first medical examination report, the Safdarjung

Hospital medical certificate and the review medical board report should

also be produced. The medical board while examining the petitioner

shall take into consideration the relevant guidelines and the standards

and procedure laid down for ascertaining the medical fitness of the

petitioner in accordance with the uniform guidelines.

15 The respondents shall complete the directions as detailed

hereinabove within 10 weeks. The petitioner shall be appointed to the

said post in accordance with the rules, if he is found fit by the above

noted Medical Board. The opinion of the medical board shall be binding

on the parties. A copy of this order be given dasti to the parties. With

these directions the writ petition is disposed of.

CM No.18326/2011

In view of the directions to examine the petitioner by a medical

board of the Army (Research and Referral) Hospital, Delhi Cantonment,

no further directions are required and the application is disposed of.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

NOVEMBER 18, 2011.

„k‟