Delhi High Court
Man Singh vs Union Of India And Ors on 21 December, 2012
Author: Gita Mittal
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 4th December, 2012
Date of decision: 21st December, 2012
+ W.P.(C) 2887/2012
MAN SINGH ..... Petitioner
Through : Mrs. Rekha Palli,
Ms. Punam Singh and
Ms. Amrita Prakash, Advs.
versus
UNION OF INDIA AND ORS ..... Respondents
Through : Mr. Ruchir Mishra, Adv.
for R-1 to 3.
Mr. Naresh Kaushik and
Mr. V. Nagpal, Advs.
for R-4.
+ W.P.(C) 2893/2012
AJAY TRIPATHI ..... Petitioner
Through : Mrs. Rekha Palli,
Ms. Punam Singh and
Ms. Amrita Prakash, Advs.
versus
UNION OF INDIA AND ORS ..... Respondents
Through : Mr. Ruchir Mishra, Adv.
for R-1 to 3.
Mr. Naresh Kaushik and
Mr. V. Nagpal, Advs.
for R-4.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
WP(C)Nos.2887/2012 & 2893/2012 Page 1 of 38
GITA MITTAL, J.
1. The instant case raises two pertinent questions. The first
issue raised in these petitions is whether the appointment to the
rank of Assistant Commandant in the Central Industrial Security
Force (CISF) by Limited Departmental Competitive Examination
(hereinafter referred to as „LDCE‟) tantamounts to appointment by
promotion or is a direct recruitment appointment. The second
question which has been raised is as to whether the respondents can
legally prescribe two medical standards for eligibility of candidates
to the same post, one for those to be selected through LDCE for the
rank of Assistant Commandant, and, the second for candidates who
are promoted to the said rank from the rank of Inspector (the feeder
cadre for the promotion to the rank of Assistant Commandant) in
the same organization.
2. Before examining these two issues, we may briefly consider
the facts giving rise to these petitions which are undisputed.
Factual narration
3. Man Singh, the petitioner in the writ petition bearing
WP(C)No.2887/2012 had joined the CISF on 22nd May, 2003 as a
Sub Inspector (Executive). Ajay Tripathi, the petitioner in writ
petition bearing WP(C)No.2893/2012 had joined the CISF on 18 th
May, 2003 as Sub Inspector (Executive). Both of them had
successfully cleared the Annual Range Classification (ARC), i.e.,
firing test conducted by the department every year since 2003 to
2011. Both the petitioners are stated to have also undertaken the
Basic Training Pre Commando Course and Promotion Course in
the year 2010 for promotion from the post of Sub Inspector to
Inspector. The writ petitions state that the petitioners had
successfully qualified the Screener Certificate and performed the
duties of Screener at Airports which includes operation of the X-
ray Baggage Inspection Machine with utmost efficiency.
These facts are not disputed by the respondents.
4. Vide a notification dated 16th April, 2011, the respondent
no.1 invited applications from departmental candidates for filling
up vacancies of Assistant Commandant (Executive) for the vacancy
year 2010 and 2011. Since both Man Singh and Ajay Tripathi
were fulfilling all eligibility conditions, they applied for the same
and appeared in the written examination which was held on 19 th
June, 2011 by the Union Public Service Commission (hereinafter
referred to as UPSC), the respondent no.4 herein.
5. Both the petitioners had successfully qualified the written
test as well as the physical efficiency test (PET) held on 21st
September, 2011 and were directed to appear before the medical
board for the medical examination for selection to the said rank.
Man Singh and Ajay Tripathi appeared before the Medical Board at
the Base Hospital ITBP, Tigri Camp, New Delhi on 23 rd and 24th
September, 2011 respectively and underwent the medical
examination. Both the petitioners were declared medically unfit on
account of their having „Alternating Exophoria‟ (latent squint).
Ajay Tripathi was found unfit on the additional ground that he was
overweight by 6 Kgs.
6. As both the petitioners were unsatisfied with the result of the
medical examination, Man Singh underwent a medical examination
at SMS Hospital, Jaipur on 24th September, 2011 where he was
declared medically fit for the appointment to the post of Assistant
Commandant (Executive) (LDCE). Ajay Tripathi, similarly
underwent medical examination at the Eye Clinic, Agartala on 7 th
October, 2011 in which he was also declared to be medically fit.
7. Based on the result of these medical examinations, the
petitioners sought a review medical examination from the
respondents. Man Singh was subjected to review medical board on
19th October, 2011 which confirmed the finding of unfitness by the
medical examination held on 23rd September, 2011. The finding of
unfitness of Ajay Tripathi were similarly confirmed in the review
medical board held on 18th October, 2011 convened by the
respondents.
8. The petitioner, Man Singh, has complained that the opinion
and findings of the review medial board were not communicated to
him. However on inquiry made under the Right to Information
Act, the respondents sent a response dated 24th January, 2012 to
Man Singh, which has been placed before this Court whereby the
CISF authority had informed that he had been declared unfit in the
review medical test.
9. The petitioners separately submitted representations dated
24th November, 2011 and 28th November, 2011 respectively to the
Director General of the CISF complaining that they had been
wrongly declared as medically unfit and that, on the basis of
examinations by other eye-experts, who declared them medically
fit, they were fit for appointment to the post of Assistant
Commandant (Executive) (LDCE).
10. As the representations did not evoke any positive response
from the respondents, Man Singh filed the writ petition bearing
WP(C)No.2887/2012 challenging the actions of the respondents
and sought the following relief:-
"(A) Issue a Writ of Certiorari quashing Para 2(a) of
Appendix II of Notification dated 16.04.2011 wherein
separate Medical Standards have been prescribed for
candidates for the post of Assistant Commandant in
the CISF selected through LDCE as compared to
candidates who are promoted from the post of
Inspector to Assistant Commandant;
(B) Issue a writ of certiorari quashing the findings
of the Medical Board held on 23.09.2011 and Review
Medical Board held on 19.10.2011 declaring the
petitioner as medically unfit on the grounds of his
suffering from Alternating Exophoria;
(C) Issue a writ of mandamus directing the
respondent to appoint the petitioner as an Assistant
Commandant (Executive) with all consequential
benefits; and
(D) Pass any other appropriate order/direction
which this Hon‟ble Court deem fit and proper."
11. Ajay Tripathi filed WP(C)No.2893/2012 also praying for the
above reliefs except prayer „B‟ seeking quashing of the medical
board dated 24th September, 2011 and Review Medical Board held
on 23rd September, 2011. All other prayers are identical.
As the two petitions raise identical questions of law and fact,
they are being taken up together for consideration.
12. The appointments to different posts with the CISF are
effected either by direct recruitment or by promotion from the
feeder posts.
13. During the course of hearing, the respondents have filed an
additional affidavit dated 29th November, 2012 explaining that in
the CISF, the Assistant Commandant (Executive) is an entry rank
to the Group „A‟ posts. Considering the increasing need for direct
Assistant Commandants, 17% posts from the promotion quota of
Feeder Cadre have been diverted to cater for the vacancies to be
filled-up by conducting Assistant Commandant/Limited
Departmental Competitive Examination which is open to
departmental candidates only.
14. The present case is concerned with the fast tracking of
appointments of meritorious personnel for which purpose the
respondents conduct a Limited Departmental Competitive
Examination which encompasses a written examination, a physical
efficiency test, an interview and a medical examination. It is
apparent that the persons who succeed in this Limited
Departmental Competitive Examination must possess merit of the
highest order.
Petitioners' contentions
15. It is urged by Ms. Rekha Palli, learned counsel representing
the petitioners before us that the selection of candidates for
appointment to higher posts by conducting a Limited Departmental
Competitive Examination has to be considered as appointment by
promotion. The respondents urge otherwise.
16. The second contention on behalf of the petitioner is that the
respondents appear to have also prescribed two different medical
standards, one for appointments of Assistant Commander through
LDCE and another for appointments on regular promotions in due
course. In view of the fact that the respondents have drawn up
separate Rules for Eligibility and Medical Standards so far as the
appointments by the two methods, it has, therefore, become
necessary to examine this issue. We may note that the counter
affidavit filed before us is hopelessly unclear on this issue.
Appointment through LDCE - Whether promotion or direct
recruitment?
17. In support of her first contention, Ms. Rekha Palli, learned
counsel for the petitioner has drawn our attention to the stand of the
Ministry of Home Affairs (Personnel), New Delhi as well as the
Department of Personnel and Training of the Government of India
in their records which have been filed in a pending matter before
the Supreme Court of India. The first noting (dated 18th
November, 2011) is extracted in extenso hereafter and reads as
follows:-
"Department of Personnel & Training
Estt (res)
Reference notes of Ministry of Home Affairs on pages
2-3/ante.
2. Regarding clarification whether LDCE is Direct
Recruitment or a mode of promotion, the RR Branch
of this Department has clarified that the LDCE is a
mode of promotion. On the issue of change in
category of a person, who has been appointd on the
basis of reservation, it is clarified vide this
Department‟s OM dated 11.7.2002 that SC/ST
candidates appointed on their own merit (by direct
recruitment or promotion) and adjusted against
unreserved points will retain their status of SC/ST and
will be eligible to get benefit of reservation in
future/further promotions, if any.
-sd-
(Sharad Kumar Srivastava)
Under Secretary (Res)"
(underlining by us)
18. This noting was reiterated by the Ministry of Home Affairs
in a noting dated 22nd November, 2011 of Shri R.P. Sati, Under
Secretary referring to a writ petition filed in this court. The noting
dated 22nd November, 2011 reads as follows:-
"Ministry of Home Affairs
Pers - II
Reference note on pre-pages.
2. This is regarding Writ Petition(C)No.5460/2011
filed by Shri Sundeep Kumar Dubey, Constable )GD)
of CRPF in the High Court of Delhi against his non-
selection for the post of Sub, Insp(GD) through
Limited Department Competitive Examination
(LDCE), 2010.
3. The matter was considered in this Ministry (p-
2/n) and DoP&T was requested to clarify the position
as mentioned in para - 3(p-2/n). In this connection
DoP&T vide their UO dated 18.11.2011 (p-4/n) has
clarified the following:-
"Regarding clarification whether LDCE is
Direct Recruitment or a mode of promotion,
the RR Branch of this Department has
clarified that the LDCE is a mode of
promotion. On the issue of change in
category of a person, who has been
appointed on the basis of reservation, it is
clarified vide this Department‟s OM dated
11.7.2002 that SC/ST candidates appointed
on their own merit (by direct recruitment or
promotion) and adjusted against unreserved
points will retain their status of SC/ST and
will be eligible to get benefit of reservation
in future/further promotions, if any."
4. We may convey the above mentioned
clarification of DoP&T to CRPF.
-Sd-
(R.P. Sati)
Under Secretary
22.11.2011
Director (Pers)/DS(Pers-I)"
(Underlining supplied)
The correctness and authenticity of these notings have not
been disputed before us by the respondents.
19. The respondents have urged in the present proceedings that
appointments through the LDCE is a mode of fast tracked
promotion. In the above notings, the respondents have themselves
taken the position that appointment through the LDCE is a mode of
promotion. Given the stand of the respondents in the notings
aforesaid and before this Court it is clear that appointment to
LDCE is merely an appointment by promotion, albeit fast tracked.
It would, therefore, follow that the recruitment rules or guidelines
for appointments which would apply to appointments through the
LDCE, would have to be those which are applicable to
appointment by promotions.
Medical Standards and Rules for appointment as Assistant
Commandant
20. In order to rule on the second contention on behalf of the
petitioner, it is necessary to examine the medical standards
prescribed by the respondents. We may first briefly notice the
parameters for evaluation which have been prescribed by the
respondents.
21. The respondents have provided rules and regulations for
promotion of Inspectors to the post of Assistant (Executive) by a
notification dated 17th February, 2009.
The rules being the Central Industrial Security Force,
Assistant Commandant (Executive) Recruitment Rules, 2009
which apply to promotion of inspectors to the post of Assistant
Commandant (Executive) were notified by the Ministry of Home
Affairs by a notification dated 17th February, 2009. The same have
been placed along with the additional affidavit on record. Perusal
of these rules would show that in column 12, the respondents
provide the eligibility requirements for promotion which is to the
following effect:-
" Inspector (Executive) in the pay scale of PB-2 9300-
34800 + GP 4600 with five years regular service in the
grade being in medical category Shape-1 and having
passed the matriculation examination from a recognized
Board or equivalent."
Therefore, as per these rules, so far as the medical fitness
status is concerned, the only requirement prescribed by the
respondents is that the Inspector should have been placed in
medical category Shape-1 and nothing else.
The LDCE examination is conducted by the Union Public
Service Commission (UPSC) which frames subject examination
rules for each vacancy year with the approval of the Ministry of
Home Affairs. The respondents state that the eligibility criteria for
the direct recruit Assistant Commandants as well as those
appointed from the Limited Departmental Competitive
Examinations are identical except with regard to the age limits.
The respondents also state that vacancies for Assistant
Commandants through the LDCE are filled-up by applying the
same process and set of rules of medical and physical standards as
are applicable for direct recruitments.
So far as the relevant LDCE examination is concerned, the
Ministry of Home Affairs issued a notification dated 16 th April,
2011 prescribing "Rules for Limited Departmental Competitive
Examination" to be held by the Union Public Service Commission
in 2011 for the purpose of filling vacancies of Assistant
Commandants (Executive) in Central Industrial Security Force for
the vacancy year 2010 and 2011.
Both the parties have drawn our attention to Rule 8 and the
physical and medical standards for candidates which have been
stipulated in Appendix II therein, the relevant extract whereof reads
as follows:-
"8. Candidates must meet the prescribed Physical
and Medical standards for admission to the Limited
Departmental Competitive Examination for selection
of Assistant Commandant (Executive) in CISF, 2010
and 2011 specified in Appendix - II of these Rules."
"(2) Medical Standards:
(a) Eye Sight
Better eye Worse eye
(Corrected (Corrected
vision) vision)
Distant 6/6 6/12
Vision OR
6/9 6/9
Near JI (corrected) J2 Corrected)
vision
The candidate should not have squint of any degree
and should have high colour vision."
22. We are informed that the issue with regard to the
prescription of visual standards with regard to the personnel of the
Central Armed Police Force had been raised in a host of writ
petitions before this court. Amongst others, in
W.P.(C)No.686/2011 and W.P.(C)No.1142/2011, this Court
directed the Government to notify revised visual standards.
23. A detailed consideration was thereafter effected by the
Ministry of Home Affairs of the Government of India culminated
in formalization of the policy guidelines captioned as "Policy
Guidelines on Visual Standards for recruitment/retention in respect
of Central Armed Police Force (CAPF) and Assam Rifles (ARs)
personnel" which were issued by communication dated 18th May,
2012. The object and intendment of the guidelines is to be found
in paras 3 and 4 which read as follows:-
"3. Keeping the above in view, a board was
constituted under the guidance of ADG(Medial),
CAPFs to examine the scientific reforms required in
the existing instructions on Colour Blindness for the
purpose of Medial Examination during recruitment
and the medial categorization policy guidelines in
CAPFs "SHAPE" system and also to prepare updated
standard of visual acuity required for the various
groups of personnel recruited in CAPFs and ARs,
including age specific physiological changes at the
various levels of serving age.
4. The said board had submitted its
recommendations wherein while stating that there is
necessity to review the visual standards in CAPFs &
ARs to avoid litigations, they have also observed that :
a. The visual standards vary amongst the CAPFs
and the same have never been comprehensively
reviewed. The existing standards have been
taken mostly from Army & CGHS in various
organizations. Furthermore, due to various
loopholes in the existing visual standards, there
had been various litigations in the courts against
the visual standards and in many cases, the
CAPFs have failed to counter the charges against
visual standards in the Hon‟ble Courts.
b. The capability of Direct Appointed Gazetted
Officers to carry out their tasks is also enhanced
in the current scenario since optical, range-
finding and target acquisition devices have made
the unaided visual acuity concept redundant.
Even if the officer does not have his spectacles on
the battlefield, the range of assisting devices will
help him carry out his tasks efficiently provided
he has good spectacle assisted acuity. Hence, it is
proposed that the unaided visual acuity criteria be
relaxed and best corrected visual acuity now be
made the real determinant of a candidate‟s fitness
to serve in the CAPFs & ARs.
c. The CAPFs and Staff Selection Commission
(SSC), while doing their recruitments are silent
on near vision. It has also not been defined in
recruitment rules. Furthermore, CAPFs are
facing litigations especially in respect of ex-
servicemen. To have uniformity and avoid future
litigations, near vision needs to be specified and
recommended in respect of all ranks.
d. There are three grades of binocular vision, Grade-
I being Simultaneous macular perception, Grade-
2 being Fusion and Grade-3 being Stereopsis or
3-D vision (depth perception). There are certain
branches like Law and logistics where a
Binocular vision of Grade-2 would suffice.
These branches are losing out on a lot of
deserving candidates due to the above stringent
criteria. Some branches like aviation have
stringent prism bar based guidelines for
acceptance. These standards are now felt to be
unnecessarily stringent in view of ILS and other
precision navigational systems. Such stringent
standards for posts where they are not required,
also result in a large number of referrals for this
condition thereby increasing the work load of
senior advisers/experts unnecessarily, as many of
such cases are found fit upon review. Hence a
simpler and more liberal standard is proposed so
as to make it easier to implement.
e. There are certain branches like law, pioneer,
education, animal transport, barber, washermen
watercarrier, cook, safai karamchari, gardner,
cobbler, carpenter, electrician, etc. which can do
with a colour perception standard of CP-IV as
their job profile does not involve any activity that
requires acute identification of colours from great
distances. In rarest of rare cases they may be
called upon to perform such duties, but the
criteria for the whole induction cannot be made
stringent in anticipation of a rarer eventuality
which may never occur.
f. Colour vision test should be done once at the time
of recruitment and later on at the time of basic
training. Thereafter, there is not necessity to
examine it during Annual Medical Examinations,
since it is mostly a congenital problem.
g. Ex-servicemen are appearing for the recruitment
of officers and SOs in CAPFs & ARs. Since they
are appearing in the age group 35-50 years for the
re-employment in CAPFs & ARs, they cannot be
treated at par with direct entry candidates with
the age related refractive errors. It is presumed
that they have developed refractive errors by this
stage and accordingly visual standards for them
should be relaxed.
h. All the Direct Appointed Gazetted Officers
(DAGOs) in CAPFs and ARs are graduate.
LASIK is proposed as an acceptable method for
vision correction for all DAGOs for selection in
CAPFs/ARs. The acceptance standards for these
surgeries are to be made uniform across the
CAPFs as under :
i) Uncomplicated surgery
ii) Surgery atleast 6 months before examination
iii) Axial length ≤ 26 or > 21l mm by IOL Master or
A Scan
iv) Residual corneal thickness 425 micron
v) Residual refraction ≤ +/-0.75 D sph or cyl
vi) Normal retinal examination. No evidence of
laser, retinal detachment or peripheral retinal
lesions requiring treatment. No suspicion of
myopic maculopathy, optic disc assessment to be
unambiguously noted in terms of disc size, CD
ratio, adherence to ISNT rule (inferior
neuroretinal rim to be thicker than superior,
followed by nasal and temporal rim being the
thinnest), presence of nerve fibre layer defects
and perpapillary atrophy or nerve fibre layer
hemorrhages. Family history of glaucoma must
be mentioned.
These standards are proposed based on the evidence
that flap and refractive stability and quality of vision
stabilization usually occur within six months in most
cases. Studies in the US military have reported
increased reports of glare, haze and haloes at night
during the first month after treatment when compared
with experiences with either glasses or contact lenses
before LASIK. These complaints were higher in the
treated compared with the untreated eyes at 1 month,
but complaints were reduced by 3 months after
treatment and indistinguishable from preoperative
levels by 6 months.
i. Since sufficient data are unavailable about other
refractive surgeries such as Phakic IOLs and
INTACS, candidates having undergone these
procedures will be considered UNFIT. Similar
guidelines will be followed for any new refractive
procedures other than expressly outlines above.
Radial Keratotomy performed in any candidate
will render him/her UNFIT for service.
j. Where there is suspicion that individual has been
using hard contact lenses to modify corneal
curvature by orthokeratology, it is suggest that
the candidate is to be kept under close
observation without contact lens wear for 72
hours and serial corneal topography and
refraction be done during this period to unmask
the true refractive status and corneal curvature."
24. Paras 8 and 9 of the communication dated 18th May, 2012
provides the applicability of these guidelines and reads as follows:-
"8. For conducting the ophthalmic examination by
the doctors during the medical examination while
recruitment as well as during the Annual Medical
Examination of Force personnel for deciding the
medical category as per the medical categorization
policy guidelines in CAPFs "SHAPE" system,
detailed guidelines have been given in Annexure-II for
determining the visual standards as per the New
Standards.
9. For the existing Force personnel, the medical
„SHAPE‟ category determined for the visual
standards, particularly with regard to Colour
Blindness, as per the New Standards shall be
applicable in future and no retrospective benefit shall
accrue to the Force personnel in case their visual
standards are declared upto the mark (as per the New
Standard) while determining their „SHAPE‟ category
in the Annual Medical Examination."
25. So far as the recording of results of the medical examination
as well as the effect of having a squint are concerned, the same is
considered and prescribed in para 41 of the guidelines. Given the
controversy before us, the same also requires to be considered in
extenso and reads as follows:-
"41. Recording of Results. The degree of movement
is recorded by letters _ S‟ if slight and _M‟ if
moderate. Second and third letters indicate lateral or
medial deviation. Fourth and fifth letters show rate of
recovery and the last two letters indicate whether left
or right or both eyes. Slight latent divergence with
rapid recovery in both eyes will be recorded as _
SLDRRBE' Recruits with tropia or manifest squint
are unfit. Latent squint is acceptable provided
recovery is complete and rapid."
(Emphasis by us)
26. The respondents have also prescribed the parameters of the
ocular muscle balance with which squints are relatable. In this
regard, the prescription at Sr.No.VII in para 70 is relevant and
reads as follows:-
"VII. Ocular Muscle Balance ;
70. Individuals with manifest squint are not
acceptable for recruitment.
71. The assessment of latent squint or
heterophoria in the case of aircrew will be mainly
based on the assessment of the fusion capacity. A
strong fusion sense ensures the maintenance of
binocular vision in the face of stress and fatigue.
Hence, it is the main criterion for acceptability.
(a) Convergence :
(i) Objective Convergence. Average is from 6.5 to 8
cm. It is poor at 10 cm and above.
(ii) Subjective Convergence (SC). This indicates
the end point of binocular vision under the stress of
convergence. If the subjective convergence is more
than 10 cm beyond the limit of objective convergence,
the fusion capacity is poor. This is specially so when
the objective convergence is 10 cm and above.
Table 1. 17-20 21-25 26-30 31-35 36-40 41-45
Accomodation
Values - Age
wise. Age in yrs.
Accommodation 10-11 11-12 12.5-13.5 14-16 16-18.5 18.5-
(b) Accommodation. In the case of myopes,
accommodation should be assessed with corrective
glasses in position. The acceptable values for
accommodation in various age groups are given in
Table 1.
72. Ocular muscle balance is dynamic and varies with
concentration, anxiety, fatigue, hypoxia, drugs and
alcohol. The above tests should be considered
together for the final assessment. For example, cases
just beyond the maximum limits of the Maddox Rod
test, but who show a good binocular response, a good
objective convergence with little difference from
subjective convergence, and full and rapid recovery on
the cover tests may be accepted. On the other hand,
cases well within Maddox Rod test limits, but who
show little or no fusion capacity, incomplete or no
recovery on the cover tests, and poor subjective
convergence should be rejected.
73. Any clinical findings in the media (cornea, lens,
vitreous) or fundus, which is of pathological nature
and likely to progress will be a cause for rejection.
This examination will be done by slit lamp and
ophthalmoscopy under mydriasis."
27. A reading of the above would show that these guidelines
apply to initial appointment as well as medical examination
conducted after induction at all stages. The mandate of these
guidelines is clear and it is clearly prescribed that the new
standards would be applicable in future and no retrospective
benefit shall accrue to force personnel in case the visual standard is
declared up to the mark as per the new standard while determining
the shape category in the annual medical examination.
28. We may note that even at the cost of repetition that so far as
the present petitioners are concerned, they have been categorized as
being in Shape-I and had never been found to be medically unfit in
their annual medical examination.
29. Without commenting on the issue as to whether these
guidelines dated 18th May, 2012 would have applied to the LDCE
of the petitioners which commenced pursuant to the notification
dated 16th April, 2011 leading to the written examination
conducted on 19th June, 2011 while the medical examination was
conducted on 23rd and 24th September, 2011 respectively, we may
point out that while framing the regulations, the experts at the
highest level have considered the method and parameters in the
context of latest technology as well as the job requirements. These
guidelines recognise the difference between a latent squint and a
manifest squint. It has been clearly prescribed that only recruits
with manifest squint are unfit. Guideline 41 categorically lays
down that latent squint is acceptable provided the recovery was
complete and rapid.
30. The petitioners have also placed before us medical standards
for direct recruits. The respondents have circulated these as
"Uniform Guidelines for Conduct of Medical Examination of
Combined Recruitment of Constable/GD - 2011 in CAPFs"
under the communication dated 18th July, 2011. Under clause 8 of
these guidelines, the respondents have detailed "Main points in
medical examination for recruits". So far as the vision is
concerned, the respondents have prescribed as hereunder:-
"(C). His vision with either eye is up to the required
standard. His eyes are bright, clear and with no
obvious squint or abnormality. Movements of eye
balls should be full and free in all impediments."
31. It is noteworthy that in these standards as well, the
respondents have drawn a clear distinction with regard to the non-
eligibility of only persons with "obvious squint". Therefore, so far
as direct recruitment is concerned, only candidates with an obvious
squint were ineligible for appointment. So far as a person
possessing a latent squint is concerned, no objection has been
prescribed in the guidelines.
Analysis and Conclusions
32. The petitioner has taken an objection that if it were to be
held that under the Rules of 16th April, 2011 prohibition for
appointment of persons with a squint included a candidate with a
latent squint as well, the respondents cannot legally prescribe two
different standards of eligibility for appointment to the same rank
of Assistant Commandant, one standard being applicable to those
who are promoted to the said post in due course from the post of
Inspector and the other being applicable to the candidates being
appointed through direct recruitment.
33. It has been urged at some length before us that there could
be no rationale or justification on the part of the respondents in
prescribing such differential medical standards for the same post in
the same organization; more so, when both the categories of
persons are already satisfactorily working in the organization.
34. The respondents in their counter affidavit have given no
answer at all to these specific grounds raised by the petitioner.
Even in the oral submissions made before us, no reasonable
explanation could be given as to how two standards could be
prescribed for the same post.
35. It has been urged before us that so far as the LDCE is
concerned, the same enables the CAPFs personnel to fast track
promotion to a higher position and, therefore, through the LDCE, a
personnel is appointed to a higher rank at a younger age. It is
urged that if the person had to wait for a promotion in due course,
he would be older in age. This certainly cannot serve as a
justification for providing more stringent standards for younger
persons and setting less stringent standards when the person was to
be appointed on promotion in due course, and therefore, older in
age.
36. In the instant case, the petitioners have been rendered unfit
for a promotion by the LDCE in which selection he has
successfully participated on the ground that he had a "latent
squint". In case, the petitioners were to simply wait for promotion
in due course, they would be eligible for a promotion despite the
latent squint.
37. Such reading of the Appendix II to the Rules of 16th April,
2011 as suggested by the respondents, results in a preposterous
situation. It would result in a meritorious Inspector, who is able to
successfully meet all requirements of the LDCE, being rendered
unfit because he had a latent squint. Whereas the same Inspector
with such latent squint, and much older in age, is eligible for
promotion to due course to the same post of Assistant
Commandant. This interpretation has no justification or legal
basis. It does not in any manner further efficiency or public
interest or lead to selection of better candidates. On the contrary, a
meritorious Inspector who is declared unfit because of a latent
squint after clearing LDCE, would after a few years be promoted in
due course, despite the latent squint.
38. Similar issues were raised before this court in the context of
persons who were found to be colour blind in the CAPFs and were
seeking promotions by LDCE. In this regard, our attention has
been drawn to a Division Bench pronouncement of this court dated
22nd March, 2011 in WP(C)No.5077/2008 titled Sudesh Kumar &
Ors. v. Union of India and others as well as connected writ
petitions. The facts in this case have been briefly noticed out in
para 2 of the judgment and the ruling of the court on similar issues
that are raised before this court are contained in para 41 of the
pronouncement. The same may usefully be extracted and read as
follows:-
"2. Sudesh Kumar, the writ petitioner of WP(C)5077/2008
joined service as a Constable (General Duty) with the
Central Industrial Security Force on 19.4.2003.
Indisputably, he was medically examined at the time of his
initial entry in the service and was found fit. He was not
detected with any colour blindness. At each annual medical
examination he was found fully fit. Responding to an
advertisement dated 19.3.2007 he sought career progression
when he offered his candidature for being appointed as a
SubInspector (Executive) through a Limited Departmental
Competitive Examination proposed to be conducted by the
Department. He successfully cleared the written examination
held on 27.5.2007 as also the physical examination
conducted on 2.6.2007 as also the interview held on
29.6.2007. Required to undergo another medical
examination, he was medically examined at the CISF
Hospital, Saket, New Delhi on 5.7.2007 and on 6.7.2007 was
communicated a rejection on ground of being „unfit‟. The
medical unfitness detected was: „Defective Colour Vision‟.
He had a right to seek a Review Medical Board and for
which he was supposed to file an Appeal annexing
therewith an opinion of a competent doctor to the contrary.
Since by July 2007, the Unit to which the petitioner was
attached was transferred Thalchar (Orissa), he got himself
medically examined from an Eye-Specialist at Angul
(Orissa) and obtained a certificate as per which it was
certified that the he had normal colour vision. He also got
himself examined from the District Hospital, Moradabad
where it was certified that his colour vision was normal.
Armed with the 2 certificates he preferred an appeal to the
Inspector General CISF and grievance raised in the writ
petition is that his Appeal was not being disposed of. During
arguments of the writ petition filed by him, counsel stated
that directions may be issued to CISF to convene a Review
Medical Board with a panel of 3 doctors; all of whom should
be Ophthalmologist with further direction that latest
techniques available to detect colour blindness should be
considered by the Board and applied at the medical
examination. The response of CISF, as per counter affidavit
filed, is that the Appeal filed has been rejected inasmuch as
Sudesh Kumar has not complied with the requirements of
filing the Appeal. Though not stated with clarity in the
counter affidavit filed as to what was not complied with by
Sudesh Kumar, during arguments, Dr.Ashwani Bhardwaj
Advocate, stated that the requirement to be complied with
was to have it recorded in the certificates obtained by Sudesh
Kumar from the Civil Hospitals that he had informed the
doctors concerned of being detected with colour blindness
by the doctors of CISF, and since the certificates did not so
record, the Appeal was rejected. It is asserted that this fact
was communicated to Sudesh Kumar on 7.9.2007."
xxx
"41. The policy circular dated 29.10.2008, while restricting
the benefit thereof to those who were engaged prior to
17.5.2002, a cut-off date which we have opined to be
arbitrary, contains a beneficial policy of adjusting the
members of the force who suffer from colour blindness, to
be made to perform such duties where colour blindness is
not a handicap. Being a beneficial policy, it needs to be
construed liberally and as long as the language thereof
permits, in the widest amplitude. The same guiding
beneficial principles, we see no reason, should not apply to
all the writ petitioners. In this context we seek to highlight
a very anomalous situation created by the respondents
evidenced by the case of Sudesh Kumar, the writ petitioner
of WP(C) No.5077/2008 who joined service as a Constable
(General Duty) under CISF on 19.4.2003 and was not
detected with colour blindness then nor at any subsequent
medical examination, but is being denied the fruits of
promotion as a Sub-Inspector (Executive) notwithstanding
he having successfully cleared the written and physical
examination as also the interview on the ground that on
5.7.2007 he was detected with a defective colour vision.
What is the exact extent of the defective colour vision has
not been brought out. But what is unexplainable is that as
per CISF he can continue to work as a Constable (General
Duty), but not earn a promotion as a Sub-Inspector
(Executive). We just do not see any rationale in the action
taken. We also find absurdity in the stand taken by the CISF
of not convening a Review Medical Board on the ground of
the deficiency in the language of the certificates obtained by
him from civil hospitals. Law is clear. Unless the language
of a document is statutorily prescribed, as long as there is
substantial compliance with the substance of an issue, the
language of a document is immaterial. We find no
justification for CISF not to subject him to a Review
Medical Board, but in the final view which we have taken,
there may be no requirement of so doing."
39. In support of the contention that the Rules of 16th April,
2011 do not render the petitioners unfit, reliance is placed on the
decision dated 23rd July, 2012 in W.P.(C)No.9085/2011 titled
Tholu Rocky v. Director General, CISF & Ors. wherein the Court
held as follows:-
"4. The facts disclosed above would demonstrate
that a person of schedule tribe of Mizo‟s and Naga‟s
community is given relaxation in physical standards
and the Central Industrial Security Force
(Subordinate Ranks) Recruitment Rules, 1999 provide
for height of 162.5 cms. only as against candidates
belonging to other categories where the height
required is 170/165 cms. Therefore, we do not find
any justification or rationale in not extending the same
benefit to this tribe at the stage of their promotion to
the post of Assistant Commandant. The purpose of
inserting different standards for Mizo‟s and Naga‟s in
the Central Industrial Security Force (Subordinate
Ranks) Recruitment Rules, was recognition of the fact
that normally the persons belonging to these
communities/tribes are of short heights. That fact is
given due recognition by making the aforesaid
provision and on that basis, the petitioner was allowed
to enter the service in CISF. Once this aspect is
recognized and requisite provision made at the entry
level, we fail to understand as to how it becomes a bar
when it comes to further progression in his service.
Not only it is irrational and arbitrary, it would also
amount to stagnating a person at the present post
without giving him chance to seek promotion to a
higher post."
40. Appendix II to the Rules of 16th April, 2011 which was
applied to the LDCE in question makes a reference to only a
"squint" without noticing the important distinction between a latent
and a manifest squint. This distinction has been recognized by the
respondents themselves. Given the prescription of the Guidelines
dated 18th May, 2012 which apply to promotions which are
effected in the CAPF as well as the aforenoticed Medical Standards
dated 18th July, 2011 for direct recruitment, it is evident that the
respondents do not consider a latent squint as rendering a person
unfit for appointment to the rank of Assistant Commandant.
41. In the instant cases as well, not only is an Inspector with a
latent squint eligible and fit to continue to work as an Inspector but
cannot be promoted through the LDCE to the post of Assistant
Commandant. Such person having a latent squint is also fit to be
appointed in due course through regular promotion channel to the
same post of Assistant Commandant. The respondents do not even
remotely suggest an explanation for this.
Just as in Sudesh Kumar (Supra), the stand of the official
respondents is bereft of any logic or rationale, and in fact results in
absurdity.
42. The Rules for Limited Departmental Competitive
Examination of 16th April, 2011 have to be read, understood,
interpreted and applied in the context of the prescriptions made by
the respondents in "Uniform Guidelines for Conduct of Medical
Examination of Combined Recruitment of Constable/GD-2011 in
CAPFs' dated 18th of July, 2011" in the light of the guidelines of
18th May, 2012, as well as the Medical Standards For Direct
Recruits prescribe Uniform Guidelines dated 18th July, 2011.
43. We are supported in the view we have taken also by order
dated 14th May, 2009 passed by the Supreme Court in
SLP(C)No.1877/2007 entitled Ajay Kumar v. Union of India &
Ors. wherein the court agreed with the opinion of the Post
Graduate Institute of Medical Education and Research, Chandigarh
which had found the petitioner medically fit for the post of
Constable in the CRPF who had no manifest squint even though he
had exophoria for near with slow recovery. The order of the
Supreme Court reads as follows:-
"The appellant was originally recruited as
constable in CRPF but during the course of medical
examination it was found that his vision was not
normal. Then he was subjected to Examination by the
Medical Board on 24th April, 2002 and it was found
that though he had no manifest squint, he had
moderate exophoria with slow recovery and ultimately
the Board opined that the candidate is fit for the job of
Constable in CRPF. But subsequently on 24th March,
2003, his services were terminated on the ground that
the Director of Medical Directorate found him
unsuitable. The appellant filed a writ petition and the
High Court referred the matter to the Medical Board
consisting of some senior doctors from the
Postgraduate Institute of Medical Education and
Research, Chandigarh. The Medical Board gave the
following opinion:
"He had unaided visual acuity of 6/6 in both
eyes and his color vision and fundus
examination was found to be within normal
limits. He has no manifest squint. However,
he has exophoria for near with slow
recovery. Worth four dot test showed
binocular single vision. In our opinion, the
candidate is fit for the job of Constable in
CRPF."
In view of the medical opinion expressed by the
Medical Board of the Postgraduate Institute of
Medical Education and Research, Chandigarh, we are
unable to agree with the respondent that the appellant
is not medically fit. Respondents are directed to
reinstate the appellant forthwith. The appellant is not
entitled to get back wages for the period he was out of
service. But for the period he was in service, the
wages may be paid as soon as he is reinstated in
service.
The appeal is disposed of accordingly."
44. Having regard to the above discussion, it has to be held that
the prescription in Appendix II Clause 29 of the rules dated 16 th
April, 2011 can advert only to an obvious or manifest squint and no
other.
Fitness and Merit
45. The CISF is a paramilitary force and is performing serious
security functions including those at airports, sea ports, industrial
establishments of the Government and other vital installations of
the Governments. There can be no doubt at all that medical
standards in the force cannot be compromised.
46. It is undisputed before us that the petitioners have undergone
the annual range classification firing test conducted by the
respondents and have been declared as being in Shape I which is
the highest medical fitness category appointed by the respondents.
In this regard, Man Singh has placed the documents relating to the
medical board conducted on 9th July, 2010 and 12th July, 2011
before us. It has also been pointed out that after scrutiny of all
relevant facts including medical categorization as Shape - I, Man
Singh was promoted from the post of Sub Inspector to Inspector on
6th March, 2012. Similarly, Ajay Tripathi was so promoted on 14th
February, 2012 to the post of Inspector.
47. On the same aspect, we may also refer to the judgment dated
4th May, 2010 in W.P.(C)No.13685/2009 titled Birendra Singh v.
Union of India & Ors. Birendra Singh was appointed as a
Constable with the CISF on 25th August, 2001. On 15th January,
2005 while posted at Mumbai, he was bitten by a snake in the
official barrack. He was taken to the nearest Government Hospital
where, due to development of gangrene in his little toe of his left
foot, the same had to be amputated. Birendra Singh contended that
the same did not have any impact on his physical fitness and that
he continued to efficiently discharge his duties. While at Mumbai,
the petitioner remained posted at the International Airport. He was
denied promotion through LDCE, even though he qualified in the
selection on the ground of the amputated toe. Allowing his
challenge, it was held as follows:-
"20. We have carefully considered the rival
contentions of the parties. Even though the
recruitment to the post of sub-inspector Exe.) though
the LDCE 2009 for which applications were invited
by the communication dated 14.1.2009 is strictly not
in the nature of a promotion, yet perusal of the notice
would show that only departmental candidates were
eligible for undertaking the written examination. No
recruitment from personnel other than the notified
personnel in the CISF is envisaged therein. Written
and physical standards have been prescribed as well as
an interview. It needs no elaboration that the effect of
successfully undertaking the selection process and the
subsequent appointment to a higher post have the
real impact of a promotion so far as the careerprofile
of the participating candidates is concerned. Therefore
the opposition to the writ petition on the ground that
the notice dated 14.1.2009 did not envisage promotion
is misconceived. In any case, the orders which are
passed against the petitioner will impact his career-
progression which we now propose to examine
hereinafter.
21. In the counter affidavit filed by the respondent,
it is not disputed that the petitioner has remained
posted at sensitive positions from the time he has
joined the force. He was compelled to suffer the
amputation of his little toe in the left foot on account
of a snake bite while he was in the official barracks at
Mumbai when posted at the International Airport.
The amputation has not impacted the functioning of
the petitioner at all and he has continued to remain
posted at sensitive postings till 2007. Even when the
respondents had to transfer the petitioner, he was not
given a soft posting. Since 1.6.2007, the petitioner
has been posted at the International Airport in New
Delhi. It cannot be disputed that such a sensitive
posting requires the security personnel manning the
airport and discharging function of airport security to
be in the fittest possible shape. Certainly the
amputation of his toe had no impact on the functions
which the petitioner has been required to discharge.
22. The petitioner‟s fitness has been endorsed by the
respondents who since 1.8.2007 have posted him as a
Commando with the Quick Reaction Team. We are
informed that prior to his assignment with the QRT,
a Constable has to undergo a Quick Reaction Team
course for a period of 35 days which is conducted at
Aarakonam, Vellore District, Tamil Nadu. The
petitioner has been posted as a Commando after
having been shortlisted and having successfully
undertaken this course.
23. Not a single complaint in the functioning of the
petitioner has been placed before us. No deficit on
account of loss of his little toe is also available or
pointed out in the record or in the documents placed
before us."
xxx
"28. The respondents accept the fact that the petitioner
was certified as being in Shape I category for the year
2007, 2008 and 2009."
48. Before us also it is an admitted position that both the
petitioners have continued to render satisfactory service to the
respondents and there is no complaint at all with regard to their
functioning or their ability to discharge their official duties and
functions.
49. In the case of Ajay Tripathi, there is yet another factor which
supports his contentions in the writ petition. On the 25th of October
2011, Ajay Tripathi was admittedly shortlisted for training and was
detailed for undertaking the Bomb Disposal (BD) (83) course by
the respondents. The respondents on 25th of October 2011 have
themselves certified Ajay Tripathi‟s fitness to undergo the training
and the course. It is undisputed that this is a special course for
which personnel who are in perfect fitness and shape are detailed.
In this background, the contention of the petitioners as regards his
medical fitness to perform his duties goes unrebutted as the
respondents are satisfactorily utilising their services in difficult
positions and postings, including those requiring specialised
training.
50. To support the case of the petitioners, it has been also
emphasized that given their merit, the petitioners were strongly
deserving the accelerated promotions. It has been pointed out that
as per the result declared by the respondents, Man Singh secured a
total of 398 marks while Ajay Tripathi secured 421 marks. The
last persons who were promoted in the LDCE by the respondents
secured only 379 marks. Both petitioners were much higher in
merit than the selected candidates.
51. The petitioners have placed on record the medical
certificates certifying them to be medically fit observing that there
was an error of judgment on the part of the medical officer and that
the declaration of medical unfitness was wholly unwarranted. Both
the petitioners have relied upon the records of the respondents.
52. Learned counsel for the respondents places reliance on an
order dated 4th December, 2009 passed in W.P.(C)No.7993/2009,
Dhananjay Kumar v. CRPF & Anr. wherein the court was
concerned with the fresh appointment of the petitioner who was
suffering from a latent squint with mild ptosis of the eye i.e. both
his eyes could not focus simultaneously at the same point and the
upper eyelid was dropping a little. It was held by the court that it is
for the authorities at CRPF to decide as to what fitness levels are
desired. This position cannot be disputed. The issues raised in the
present writ petition were not raised before the Court.
53. In the instant case, we have noticed above the prescription
made by the respondents with regard to the appointments to the
post of Assistant Commandant and the distinction which has been
drawn between the manifest and latent squint by the respondents
themselves. It is an admitted position before us that a latent squint
does not prohibit the promotion to the post of Assistant
Commandant in due course. The respondents have not provided
any specific prohibition so far as candidates who are to undergo
LDCE Examination is concerned as well and we have been called
upon to consider as to what is the intent of the rule which applies to
appointments to the LDCE exam.
54. It is also an admitted position that the Assistant
Commandants, whether they be appointed by direct recruitment or
promoted through promotions in due course or through LDCE,
perform identical functions. The judgment in Dhananjay Kumar
(supra) was not concerned with any of these aspects.
55. In view of the above discussion, it has to be held that there is
no justification at all for the respondents to be drawing the
distinction between the fitness requirements for persons who have
been appointed as Assistant Commandant through LDCE or being
appointed by regular promotion in due course to Assistant
Commandants, irrespective of the manner of their appointments,
performance identical functions. It is an admitted position before
us that person with a latent squint would be eligible for promotion
in due course to the post of Assistant Commandant. We therefore
hold that the declaration of the petitioners as being medically unfit
for appointment through the LDCE to the same post of Assistant
Commandant on the ground that they were not having latent squint
is arbitrary and unsustainable in law.
Relief
56. The writ petitioners have made a prayer for striking down
the Rules of 16th April, 2011 to the extent reproduced hereinabove.
We have held that the interpretation of the rule which are under
challenge in the instant case would take colour from the Rules and
guidelines made by the respondents themselves which have
binding force. Given the above interpretation, it is wholly
unnecessary to strike down the Rule in question.
57. In view of the above discussion, it is to be held that the
findings of the Medical Board dated 23rd September, 2011 and the
Review Medical Board on 19th October, 2011 in the case of Man
Singh (writ petitioner in W.P.(C)No.2887/2012); as well as the
findings of the Medical Board held on 24th September, 2011 and
the Review Medical Board held on 18th October, 2011 in the case
of Ajay Tripathi (writ petitioner in W.P.(C)No.2893/2012) holding
the petitioners unfit are legally unsustainable and are hereby set
aside and quashed. As a result, the petitioners are entitled to be
promoted to the posts of Assistant Commandant just as other
persons who successfully cleared the same Limited Departmental
Competent Examination as the petitioners.
58. However, given the passage of time since the last medical
examination, before any appointment of the petitioners can be
effected, the respondents would be required to conduct a medical
examination afresh of the petitioners before their appointments.
The respondents shall consequently constitute a Board within four
weeks of the present judgment for a medical examination of the
petitioners which shall take into consideration the observations
made in the present order as well as the result of the annual
examinations of the petitioners. The findings of the Medical Board
shall be forthwith communicated to the petitioners.
59. In case, the petitioners are found medically fit for
appointment, the respondents shall issue the letters of appointment
to the petitioners to the post of Assistant Commandment within a
period of four weeks from their medical examination.
60. The petitioners shall be entitled to notional seniority and all
other consequential benefits upon their appointment, as if they had
been appointed along with the other persons in the LDCE selection
pursuant to the notification dated 16th of April, 2011. We make it
clear that the petitioners shall however not be entitled to back
wages.
61. In case the petitioners are required to undergo any training,
the respondents shall ensure appropriate facility to the petitioners
for the same so that no prejudice of any kind results to the service
career or the service profile of the petitioners.
62. We also make it clear that in case the petitioners are
aggrieved by the result of the medical examination or any other
order passed by the respondents, it shall be open to the petitioners
to assail the same by an appropriate action in accordance with law.
63. If the petitioners are found medically fit and in case the
respondents do not complete the process of their appointment
within the stipulated period, the petitioners would be entitled to
salary and emoluments for the position of the Assistant
Commandant (Executive) with effect from today.
64. In case, the vacancies in the rank of Assistant Commandant
for the year 2010-2011 are not available, the respondents shall
effect the appointments of the petitioners against vacancies for the
future, subject to the protection of notional seniority, with all
consequential benefits to which the petitioners have been entitled.
These writ petitions are allowed in the above terms.
(GITA MITTAL)
JUDGE
(J.R. MIDHA)
JUDGE
DECEMBER 21, 2012
mk
