Bhan Khatana vs Uoi And Ors
2012 Latest Caselaw 4760 Del

7
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +   W.P.(C)No.13461/2009

%                                 Date of decision: 14th August, 2012

       BHAN KHATANA                                 ..... Petitioner
                            Through : Mr. Raunak Jain and
                                      Mr. Varun Aggarwal, Advs.

                       versus

       UOI AND ORS                                 ..... Respondents
                            Through : Mr. Tushar Singh, Adv. for
                                      Mr. Jatan Singh, CGSC.

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

                           JUDGMENT (ORAL)

1. This writ petition raises a challenge to an order dated 26th

July, 2007 whereby the petitioner‟s services with the Central

Reserve Police Force („CRPF‟ for brevity) were terminated

under Rule 6 of the Central Civil Service Rules („CCS Rules‟ for

brevity). The petitioner‟s appeal challenging the termination

was rejected by an order passed on 24 th January, 2008 and his

revision assailing the same met the same fate by an order

passed on 15th May, 2008.

2. The facts leading to the present writ petition briefly

stated are that the petitioner was recruited as „barber‟ in the

CRPF in March, 2005 after undergoing the complete

recruitment process which included the medical examination.

The petitioner has drawn our attention to the Medical Board

conducted on 30th December, 2006 wherein he was graded as

being in Shape-I.

3. The petitioner states that he was suffering from myopia

in his eyes. For correction of his vision, he underwent the lasik

procedure which is stated to be a non-evasive correctional

procedure in his eyes. The myopia was thereby corrected.

The petitioner contends that he continued to render

satisfactory service with the respondents without any

complaint.

4. At this stage, by an order dated 26th July, 2007, the

services of the petitioner were terminated by the Commandant

of the 126th Battalion of the CRPF, Jharoda Kalan where the

petitioner was posted, after constituting a Medical Board in

terms of Rule 6 of the Central Civil Services Rules, 1965 which

declared the petitioner unfit for retention in service. The

petitioner was aggrieved by the fact that the report of the

Medical Board on which the termination order was passed was

not furnished to him. The petitioner also challenged the

findings of the said Board to the effect that he was medically

unfit for retention in service. He was placing reliance on the

report of the Bharti Hospital, a private facility as well as the

certification of his fitness in his medical examinations

conducted in the CRPF Hospitals.

5. As noticed above, the petitioner‟s appeal against the

findings of the Medical Board as well as the termination of his

services and revision petition were rejected by orders passed

on 21st January, 2008 and 15th May, 2008.

6. Aggrieved by these orders, the petitioner filed a writ

petition before this court being W.P.(C)No.7651/2008 and inter

alia sought directions to the respondents to hold a Review

Medical Board with a specialist for the problem with which the

petitioner had been suffering. This writ petition was disposed

of by an order passed on 24th October, 2008 directing a fresh

medical board of the petitioner to be conducted by the

respondents.

7. In terms of the order passed by this court , the

respondents constituted a Review Medical Board on 10 th

November, 2008 which examined the petitioner and returned

the following opinion:-

"OPINION OF THE BOARD

Board is of the opinion that individual had defective distant vision of both eyes with small optic disc pit with serous macular detachment (lt.) eye. He was recruited with this eye disease (i.e. defective distant vision of both eyes with small optic disc pit with serous macular detachment (Lt) eye) and later he underwent surgical intervention. As

per existing rules and regulations for Non Gazetted officer (from enrolled follower and up to the rank of Inspector) having defective distant vision and any surgical intervention done in any eye is not acceptable in forces."

(Emphasis Supplied)

8. The petitioner has asserted that as a matter of abundant

caution, he got himself examined on 11th November, 2008 by

the experts of All India Institute of Medical Sciences (AIIMS)

whose report is also contrary to the aforenoticed opinion of the

Review Medical Board.

9. The petitioner‟s representations dated 7th January, 2009,

16th February, 2009 and 28th February, 2009 to the

respondents seeking reinstatement in service on the ground

that he was medically fit were of no avail necessitating the

filing of the present writ petition. The petitioner has assailed

both the orders of termination of his service dated 26 th July,

2007 as well as opinion of the medical board on the ground

that the same are based on no material at all and are actually

contrary to the applicable rules and regulations.

10. The respondents have opposed the writ petition primarily

on the ground that having undergone the correctional lasik

procedure, the continuation in service of the petitioner with the

CRPF was prohibited under Standing Order No.4/08 as well as

the guidelines issued by the Director General, CISF for medical

examination tests for combined recruitment of Constable (GD)

in Central Armed Police Forces (CAPF) and Armed Rifle (RA)

dated 12th July, 2011.

11. We have heard learned counsel for the parties. It is trite

that the opinion of a Medical Board would bind adjudication on

issues relating to the medical science. However, in the instant

case, the rejection of the petitioner is not on any ground

relating to the medical field. A perusal of the aforenoticed

opinion of the board would show that the board has opined

that the petitioner was unfit for continuation in service on the

following two grounds:-

(i) that the individual was recruited with defective distant

vision of both eyes with small optic disc pit with serous macular

detachment (lt.) eye and later he underwent surgical

intervention.

(ii) that as per existing rules and regulations for Non

Gazetted officers (from enrolled follower and up to the rank of

Inspector) having defective distant vision and any surgical

intervention done in any eye is not acceptable in forces.

A perusal of the Review Medical Board opinion shows that

it notes that the petitioner had defective vision and that is to

say that the petitioner so suffered in past. It notes that he had

undergone surgical intervention. The Board does not refer to

any existing defect in the petitioner‟s petition. Therefore, the

question which arises before this court is as to whether the

petitioner had been recruited with a problem in his eyes and as

to whether there were any rules and regulations prohibiting

continuation in service of an enrolled follower who had

undergone any correction of his vision when the services of the

petitioner were terminated.

12. So far as the first objection of the Review Medical Board

is concerned, our attention has been drawn to the grading of

the petitioner even on 30th December, 2006 by the medical

experts of the respondents. Upon a medical examination as

per the extant medical rules, the petitioner has been graded as

Shape-I. No record at all has been placed before us by the

respondents to the effect that the petitioner was unfit in

performing his duties on account of any medical unfitness or

incapacity. Therefore, the observation that the petitioner had

been recruited with defective vision is not based on any

material.

13. We may now examine the second issue noticed above.

The record of the instant case shows that the petitioner has

taken a categorical stand that there were no rules prohibiting

the continuation in service to a person who had undergone

lasik surgery. Despite repeated opportunities, the respondents

were not able to produce any rule or regulation prohibiting the

enrolled followers from continuing in service for the reason

that they had undergone a surgical intervention to correct any

defect in the vision or in the eye.

14. Learned counsel for the petitioner has placed reliance on

"Recruitment Rules for Enrolled Followers" for the post of

Barber to which the petitioner had been recruited. The

relevant extract of these rules is to the following effect:-

"Part - VI Enrolled Followers

14.6 The following members of the Force come under the category of Enrolled Followers:-

1) Cook

2) Washerman

3) Barber

4) Safai Karmachari

5) Water Carrier

Eligibility for appointment For appointment to the post of Followers in Central Reserve Police Force, candidates must meet the following eligibility conditions:-

       1) Age                  Between 18 to 23 years.
                               (Cut off date for age will be
                               1st August every year)
                               Age    relaxation   will   be
                               available    to   SC/ST/OBC
                               candidates as per Govt.
                               policy

       2) Educational          8th Pass
          Qualification





       II. Physical standards

The candidate should be physically fit in all respects. The candidates should be able to complete 1 mile race in 10 minutes.

III. Medical Standards The candidates must not have colour blindness, knock knee, flat foot, varicose vein or squint in eyes. 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."

The petitioner has submitted that he was recruited as per medical standards."

15. These were the standards which were applied when the

petitioner was recruited and which were invoked even on 26 th

January, 2007 when his services were summarily discontinued.

The rules contain no prohibition for continuation in service of a

person who has undergone the lasik procedure.

16. Learned counsel for the respondents has placed reliance

on Standing Order No.4/08. It is an admitted position that this

Standing Order came into effect from the year 2008 and was

not even in existence either in 2005 when the petitioner was

recruited or on 26th July, 2007 when his services were

terminated.

17. So far as the Guidelines issued by the Director General,

CISF for „Medical Examination Tests for Combined Recruitment

of Constable (GD) in Central Armed Police Forces (CAPF) and

Assam Rifle (RA)‟ are concerned, these are dated 12th July,

2011 and would not apply to the case of the petitioner which

pertains to consideration in the year 2005 and 2007.

18. In this background, the observations of the Review

Medical Board in the opinion rendered on 10th November, 2008

to the effect that the petitioner‟s continuation in service was

prohibited under rules and regulations for the reason that he

had undergone a lasik procedure is again erroneous and not

sustainable.

19. We may note that in our order dated 17 th July, 2012, we

had noticed the above position in detail and also extracted the

Standing Order as well as the Guidelines relied upon by the

respondents. It was noted by us that the Standing Orders and

Guidelines could not apply to the case of the petitioner which

pertain to the consideration in the year 2006 and 2007. A last

opportunity was given to the respondents to produce any rule

in this regard which could guide adjudication into the matters

challenged before us. Learned counsel for the respondents

has been unable to produce any such rule or regulation which

prohibited an enrolled follower from continuation in service if

he underwent a lasik procedure for correction of myopia even

today.

20. Learned counsel for the petitioner has placed reliance on

the decision of this court dated 29th May, 2012 in

W.P.(C)No.3196/2012 titled Ms. Sreeja K. v. Union of

India & Anr. and contended that in a similar circumstances,

where the petitioner‟s services were terminated for the reason

that she was found unfit on account of having undergone lasik

surgery when there was no bar against correction of vision

through such procedure in any rule, regulation, by-law or

order. We may note that the above case related to service

with the Geological Survey of India. In the instant case, we are

concerned with the service of the petitioner with the para

military force. However, the well settled principle that the

respondents have to abide by the applicable rules and

regulations and more so when the matter relates to

termination from service cannot be deviated from. The

principles laid down in the judicial precedent therefore, clearly

applies.

21. We may note that even the Review Medical Board dated

10th November, 2008 had observed that the vision of the

petitioner is 6/6 in both eyes and therefore, he had no difficulty

with his visual capacity.

22. In view of the above, it has to be held that the opinion of

the review medical board dated 10th November, 2008 is

contrary to the record and is erroneous. The order dated 26 th

July, 2007 is also not sustainable in law.

23. The petitioner has been out of service since 26th July,

2007. The fitness of a person to join service with the para

military force is paramount.

In view of the above discussion, the order dated 26th July,

2007 is hereby set aside and quashed and it is directed as

follows:-

(i) The respondents shall conduct a medical examination of

the petitioner within three weeks from today. It is made clear

that the petitioner shall not be held medically unfit on the

ground that he had undergone the corrective lasik procedure.

The petitioner shall be given written notice of date and time of

the medical examination.

(ii) If the petitioner is found otherwise medically fit, he shall

be reinstated into service.

(iii) The petitioner shall not be entitled to backwages.

However, the petitioner shall be treated as if he had continued

in service throughout and shall be entitled to notional seniority

and any other consequential benefits which enured as a result.

This writ petition is allowed in the above terms.

Dasti.

GITA MITTAL, J

J.R. MIDHA, J AUGUST 14, 2012/mk