Mahesh Kumar Meena vs Union Of India & Ors.
2012 Latest Caselaw 814 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.6913/2011

%                       Date of Decision: 07.02.2012

Mahesh Kumar Meena                                          .... Petitioner

                     Through   Mr.A.K.Trivedi, Advocate

                                 Versus

Union of India & Ors.                                     .... Respondents

                     Through Mr.Sunil Kumar & Mr.Rajiv Ranjan Mishra,
                             Advocates.

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


ANIL KUMAR, J.

*

1. The petitioner has sought directions for the constitution of an

Independent Medical Board at the Army Hospital (R&R) or in any other

Govt. Hospital to re-examine the petitioner and if found fit, to consider

him for appointment to the post of Constable (VM) in BSF, by the

respondents, with all consequential benefits accruing therefrom. The

petitioner has also sought a declaration that the actions of the medical

authority of BSF in declaring the petitioner medically unfit on account

of having Varicose Veins while declaring another candidate, Sh.Sandeep

Kumar, fit though he also had the same disease, is discriminatory and

consequently to set aside the result of the medical examination and the

review medical examination held on 19th May, 2011 and 6th July, 2011

respectively. The petitioner has also sought that the complete medical

record in respect of the petitioner and Sh. Sandeep Kumar (Roll

No.41300027) be also called for.

2. Brief relevant facts to comprehend the controversies are that the

petitioner had applied for the post of Constable in the BSF pursuant to

an advertisement. The pay scale for the post of Constable (Vehicle

Mechanic) in BSF was Rs.5200-20200/-+ Grade Pay of Rs.2000/- and

the petitioner was allotted the Roll No.41300030. The petitioner had

appeared in the written examination and the physical test and he was

declared successful. Thereafter, he had also appeared for the medical

examination on 19th May, 2011 at STC Jodhpur. The result of the

medical examination was given on the same day and it was declared

that the petitioner was unfit due to Varicose Veins (Optd.)-C Varicose

Veins feet. Though the petitioner was declared medically unfit, he was

given an option to apply for the review medical examination, after

obtaining the necessary medical certificate from a specialist medical

practitioner of the concerned field, as per the proforma in Form No.

Technician-2011/BSF/APL.

3. The petitioner stated that after he was declared medically unfit by

the respondents, he had approached the Rajasthan Community Health

Centre, Govind Garh (Jaipur), where he got himself examined by a

medical practitioner, namely Dr.R.S.Roondla, a specialist in the field of

Surgery. The said medical practitioner found him medically fit and

issued a certificate dated 20th May, 2011 stating that after surgery,

there are no Varicose Veins in the petitioner.

4. On the basis of the medical certificate dated 20th May, 2011, the

petitioner applied for a Review Medical Board. The Review Medical

Board was held on 6th July, 2011 and was presided over by Dr. Shekhar

Jaiswal, CMO (SG) 25 BE with two other members namely, Dr.Debashis

Nag, CMO (SG) CH BS and Dr. (Mrs.) Millie Murmu, SMO 25. The

review medical board declared the petitioner medically unfit on account

of the petitioner being an operated case of bilateral varicosity Lower

Limbs. It was further held that the petitioner is having bilateral

varicosity in smaller vessels with evasting of bilateral calf muscles.

5. The petitioner contended that before approaching the Review

Medical Board, the petitioner had also got himself medically examined

in the Lok Nayak Hospital, New Delhi and that the doctor in the

Hospital had found the petitioner medically fit. The concerned doctors

of Lok Nayak Hospital had also issued a certificate dated 4th June, 2011

in this regard and in the certificate it was stated that no varicose veins

were seen in the petitioner.

6. After the petitioner was declared medically unfit by Review

Medical Board, the petitioner again approached the Sawai Man Singh

Hospital, Jaipur on 9th July, 2011 and Dr.Ram Manohar Lohia Hospital

on 14th July, 2011. There the petitioner was allegedly examined by

Dr.Neeraj Saxena MS (Surgery), Senior Surgeon, who had opined that

the petitioner has no varicose vein. In this regard, the petitioner also

produced the OPD reports dated 9th July, 2011 and 14th July, 2011

where was mentioned that the petitioner does not have varicose veins.

7. The petitioner contended that he had also sought information

under Right to Information Act, 2005, seeking the photocopies of the

documents by which he was declared medically unfit, however, his

request was denied on the ground that the information sought by the

petitioner did not fall within the ambit of Section 24 of the Right to

Information Act, 2005 as the Border Security Force is a security

organization and was listed in the Second Schedule of the Act and

consequently, it is exempted from the provision of the said Act.

8. The petitioner also relied on a decision of the Division Bench of

this Court in W.P.(C) No.3125/2011, titled as „Naresh Kumar v. Union

of India & Ors.‟, dated 10th May, 2011 stipulating that 30 cases, where

the candidates were declared to be unfit by the CRPF, were referred to

the Army Hospital (R&R) for medical examination after the said persons

had produced the certificates from the Civil Hospital about their

medical fitness. On re-examination, it was found that out of 30 such

disputed cases, the Army Hospital (R&R) had found 27 of such

candidates fit for service.

9. The petitioner also contended that though he has been declared

medically unfit on account of varicose vein, however, another candidate,

namely Sh. Sandeep Kumar, who had been assigned the Roll

No.41300027 and was placed at Sl.No.46 in the category of CT (Vehicle

Mechanic) had been declared medically fit and successful inspite of

having varicose veins. In the circumstances, it has been contended that

the petitioner has been discriminated. The petitioner, therefore, has

filed the above noted writ petition for seeking the relief as detailed

hereinabove.

10. The petition is contested by the respondents who filed an affidavit

of D.K.Upadhyaya, Dy. Inspector General Personnel, contending, inter-

alia, that as per procedure of the recruitment, a candidate who is

declared unfit in the medical examination is entitled to appeal against

the findings of the Medical Board. The petitioner was also given the

opportunity to appear before the Review Medical Board, however, even

the Review Medical Board had opined that the petitioner is unfit on

account of being an operated case of bilateral varicosity Lower Limbs.

Thus, since the petitioner has bilateral varicosity in smaller vessels with

wasting of bilateral calf muscles, he has been declared medically unfit

and therefore, the decision of the Review Medical Board cannot be

termed to be arbitrary and illegal or perverse.

11. The respondents asserted that the operated case of Varicose Vein

is not acceptable since the affected portion of vein is removed during

the surgery leading to impairment of circulation of the blood, and also

that such individuals are pre-disposed to development of varicose vein

in other vessels as well. It was further asserted that patients with

varicose vein have pain/heaviness of legs and inability to walk/stand

for long hours. Such patients can also have dermatitis in the region and

ulcers may develop in them and in due course of time, cancer may also

occur at the site of ulcers. Relying on the new policy issued by

ADG(Med) CAPF MHA, it was pointed out that candidates with operated

case of Varicose Veins are not to be accepted.

12. The respondents asserted that no appeal against the decision of

the Review Medical Board is contemplated and that the Review Medical

Board comprised of three officers, who had carefully re-examined the

petitioner before declaring him medically unfit.

13. Regarding the alleged discrimination viz-a-viz, Sh.Sandeep

Kumar, having the Roll No.41300027, it was disclosed that he was

declared unfit by the Medical Board on the ground of trifling varicose

vein and hypertension. However, the Review Medical Board did not find

any tremors or varicosity in the said candidate. It has also been

contended that the case of Sh.Sandeep Kumar was not that of Varicose

Veins rectified by operation. The respondents categorically asserted that

the Review Medical Board did not have any intention to make any

candidate fit or unfit as per their own discretion or in an arbitrary

manner. According to the respondents, the guidelines and specific

instructions are followed by the Medical Board before rendering their

decision and therefore, the pleas raised by the petitioner that an

arbitrary decision had been taken in his case to declare him medically

unfit is not correct.

14. The petitioner filed a rejoinder affidavit to the reply to the show

cause notice/counter affidavit filed on behalf of the respondents and

denied the pleas and contentions raised by the respondents.

15. This Court has heard the learned counsel for the parties, and has

also perused the documents submitted along with writ petition and the

counter affidavit, as well as the guidelines regarding the physical and

medical examination of the candidates. The guidelines of 2005 details

the general ground for rejection as well as acceptance of a candidate

suffering from trifling defects. A slight degree of varicosity is considered

to be a trifling defect under the guidelines of 2005. Learned counsel for

the respondents has also referred to para 20 of the Uniform Guidelines

for Medical Examination for Combined Recruitment for Constable/GD

in CRPFs and ARs dated 13th July, 2011 wherein the grounds for

rejection have been detailed. Para 20 (z) of subsequent guidelines

contemplates varicose veins as a ground for rejection with further

qualification that operated cases of varicose veins cannot be accepted.

Para 20(z) of said guidelines is as under:-

"(z) Varicose Veins. 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."

16. This cannot be disputed that under the guidelines of 2005, slight

degree of varicosity was to be treated as a trifling defect and that the

concerned candidate could not be rejected on this ground. However, a

trifling defect would not require correction by operation. If the varicosity

in a candidate had not already been corrected by the candidate by an

operation, it would not have been possible for the Medical Board to infer

whether the varicosity was of a slight degree or more. Though in the

guidelines of 2005, the slight degree of varicosity is not defined,

however, by any rational criteria it cannot be inferred that varicosity

which requires surgical correction would be a case of slight degree. This

ambiguity has been clarified by the respondents in the guidelines dated

13th July, 2011, which categorically stipulates the rejection of a

candidate who is operated for a varicose vein.

17. The respondents have detailed the ramifications with regard to

the operated cases of varicose vein, as it ultimately leads to impairment

of circulation of the blood, and the fact that the individuals have their

varicose vein operated, have a pre-disposition to developing varicose

vein in other vessels. This has also been disclosed by the respondents

that the patient with varicose vein have pain/heaviness of legs and

inability to walk/stand for long hours and they can also have dermatitis

in the region which may lead to development of ulcers and in due

course of time, even cancer may also occur at the site of ulcer.

18. The petitioner in the rejoinder affidavit has mechanically denied

this averment of the respondents without giving any rationale or

opinion of any medical expert specifying that the averments made on

behalf of the respondents is not correct. The Review Medical Board

consisted of three officers and no mala fides or bias has been attributed

against them. In the facts and circumstances, it is difficult to infer that

the Review Medical Board would have declared the petitioner medically

unfit mechanically or arbitrarily without any rational reasons.

19. The case of Sh.Sandeep Kumar is also distinguishable because

from the record produced, it is apparent that in the case of Sh.Sandeep

Kumar, having Roll No.41300027, there was no operation on the said

candidate for rectification of his varicose veins. If the varicose veins of

the said candidate did not require operation, nor did he undergo any

operation prior to his examination by the Medical Board, then his case

would be covered under the medical guidelines of 2005 which

contemplates slight degree of varicosity as a trifling defect and does not

disentitle a candidate for enlistment on account of medical unfitness. In

the circumstances, the plea of the petitioner about alleged

discrimination is not sustainable.

20. The petitioner himself has not denied that he was operated for

varicose veins. Consequently, the case of the petitioner cannot be of

slight degree of varicosity. In the circumstances, the petitioner cannot

claim that he should be examined by an Independent Medical Board of

the Army Hospital (R&R), Delhi Cantt. or any other Hospital, as no mala

fides or bias of any type has been imputed against the Medical Board of

the respondents, BSF. Even on the basis of the decision of this Court in

the case of Naresh Kumar (supra) he would not entitle for constitution

of an Independent Medical Board, as in the case of Naresh Kumar

(supra), observations were made against the Medical Boards of Central

Reserve Police Force. Just because the percentage of error committed by

the Medical Board of CRPF at a particular time was found to be very

high, does not necessarily lead to a reasonable inference that even the

Medical Board of the BSF would have committed similar error.

Regardless, in the case of the petitioner there is an admission on his

part itself that he had got himself operated for varicose veins. In the

circumstances, the finding of the Review Medical Board that the

petitioner is medically unfit as he is an operated case of bilateral

varicosity of Lower Limbs cannot be doubted, nor in the facts and

circumstances, the petitioner will be entitled to have another

Independent Medical Board constituted for his medical examination.

21. In the totality of the facts and circumstances, the rejection of the

petitioner by the respondents for appointment to the post of Constable

(VM) with the BSF on account of his medical unfitness cannot be

faulted, nor can the decision of the respondents be termed to be illegal

and arbitrary or suffering from any such irregularity so as to be

interfered with by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India.

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

merit, and it is, therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

February 07, 2012 vk