Delhi High Court
Ajay Panday vs Uoi And Ors on 28 July, 2014
Author: Reva Khetrapal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1938/2011
AJAY PANDAY ..... Petitioner
Through: Mrs.Rekha Palli and Ms.Ankita
Patnaik, Advocates.
versus
UOI AND ORS ..... Respondents
Through: Mr.Sunil Kumar, Advocate.
AND
+ W.P.(C) 5421/2011
RAVINDER LAMBA ..... Petitioner
Through: Mrs.Rekha Palli and Ms.Ankita
Patnaik, Advocates.
versus
UOI AND ORS ..... Respondents
Through: Mr.Sunil Kumar, Advocate.
% Date of Decision : July 28, 2014
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT
: REVA KHETRAPAL, J.
1. Both the aforesaid writ petitions raise common questions of
law. The first issue raised in these petitions is whether appointment
to the rank of Sub Inspector (Exe) in the Central Industrial Security
Force (for short "CISF") by Limited Departmental Competitive
Examination (for short „LDCE‟) is appointment by promotion or by
direct recruitment. The second issue which arises and which is an
offshoot of the first issue is as to whether the Respondents have
prescribed different medical standards for eligibility of candidates to
the same post, i.e., for those selected from the feeder cadre for
promotion to the rank of Sub Inspector in the same organization and
for those selected through LDCE for the same rank.
2. The facts in both the petitions are identical. Both the
Petitioners are currently posted as Constables on General Duty in the
CISF and claim to be fit in all respects. Both aspire to be Sub
Inspectors and for the aforesaid purpose appeared in „LDCE‟ for
appointment to the post of Sub Inspector (Exe). Pursuant thereto,
they appeared in the written examinations and after duly qualifying
the same appeared in and cleared the Physical Efficiency Test (PET)
as well as the interview. Their respective names figured amongst the
persons selected for appointment to the post of Sub Inspector (Exe)
subject to their medical fitness. When they underwent medical
examination, however, they were shocked to learn that they had been
declared medically unfit on the ground of „Sub Standard Vision‟,
even though they had continued to be in Medical Shape-I in each of
the Annual Medical Checkups which they had undergone as
Constables in the CISF.
3. Subsequently, the Petitioners submitted appeals to the Inspector
General for being examined by the Review Medical Board. The
Petitioner in WP(C) No. 1938/2011, namely, Constable Ajay Pandey
was examined by a Review Medical Board on 14.03.2011 where his
distant vision was found to be 6/6 but apparently for the reason that
he had undergone a laser surgery he was once again declared
medically unfit.
4. The Petitioner in WP(C) No.5421/2011, namely, Constable
Ravinder Lamba on receipt of the letter dated 6th January, 2009
wherein it had been stated that he was having „Sub Standard Vision‟
submitted appeal to the Inspector General and requested for holding
Review Medical Board. The case of the Petitioner though was sent
for Review Medical by the Inspector General, the concerned Medical
Officer got adamant and resorted to rebuking the Petitioner for
making such a request. Thereafter, inspite of several requests to
subject him into proper list, no proper test was ever conducted and the
Petitioner was again declared unfit. It was then that the Petitioner got
his eyes tested again from Guru Nanak Eye Centre (a Delhi
Government Hospital), All India Institute of Medical Sciences
(AIIMS), New Delhi and Safdarjung Hospital and again requested the
Respondents to consider his claim for appointment to the post of Sub-
Inspector as he was not suffering from any vision defect. The prayer
of the Petitioner was not acceded to and the Petitioner thereupon filed
Writ Petition No.1966/2010 titled as "Ravinder Lamba vs. UOI and
Ors. in this Court which was disposed of on 20.12.2010 with
directions to the Respondents to have the Petitioner examined by the
Medical Board in Army Hospital R&R and thereafter take appropriate
decision. Accordingly, the Petitioner was again examined by a Board
of the said hospital on 11.01.2011 but was again declared medically
unfit on the ground that his unaided Visual Acuity was 6/9 both
eyes and he had already undergone lasik surgery for correction of the
refractory errors of the eyes. The Petitioner, however, subsequently
got himself examined from RML Hospital on 16.03.2010 where he
was declared fit with uncorrected Visual Acuity 6/6 both eyes.
5. The Petitioner in W.P.(C) No.1938/11, namely, Constable Ajay
Pandey was subjected to a medical examination on 19.11.2010
wherein the Petitioner was declared unfit, i.e., "Vision Defect - 6/18
B.E." Subsequently he underwent an EPI Lasik Surgery at Shankar
Netralaya, Chennai. On 22.11.2010, the Petitioner was examined by
a specialist at District Hospital, Hoshangabad, M.P., who certified
that his eye sight was "6/6 B.E." The Petitioner was then examined
by a Review Medical Board on 14.03.2011 (where his distant vision
was found to be 6/6). However, the Respondents once again declared
him unfit on the grounds of having undergone a minor laser surgery.
6. Aggrieved by the findings of the medical examination and the
review medical examination, the Petitioners have filed the present
writ petitions challenging the actions of the Respondents and seeking
quashing of the respective findings of the Medical Boards and
Review Medical Boards declaring them as medically unfit on the
ground of 'Sub Standard Vision'.
7. The Petitioner (Mr. Ajay Pandey) in W.P.(C) 1938/2011 also
sought issuance of a writ of mandamus directing the Respondents to
appoint him as Sub Inspector with all consequential benefits w.e.f. the
date other candidates selected in LDCE 2010 were appointed as Sub
Inspectors (Exe).
8. The principal contention of the Petitioners is that the medical
tests which have been got conducted by them (the Petitioners) in
reputed Government hospitals are far more reliable than the medical
tests conducted by the Respondents, since the same had been
conducted in a more scientific manner and with the latest technology.
Further, it is contended that there is no reason to disbelieve the reports
of the aforesaid reputed Government hospitals. This is all the more so
as the Petitioners as Constables have been found in Medical Shape-I
in the Annual Medical Examinations conducted by the Respondents
themselves every year. It is, therefore, highly unjust and arbitrary
that the Petitioners be declared medically unfit for a higher post in the
same organization. The action of the Respondents in finding the
Petitioners physically fit and placing them in Medical Category
Shape-I for performance of their duties as Constables but
simultaneously finding them unfit for performance of duties of a
higher post, i.e., Sub Inspector (Exe) which requires lesser physical
input, is wholly irrational. This apart, it is contended, the Petitioners
meet the prescribed medical standards and have been discharging
their duties to the utmost satisfaction of their superiors without any
complaint from any quarter.
9. It is urged by Ms. Rekha Palli, learned counsel for the
Petitioners before us that the question whether the selection of
candidates for appointment to a higher post by conducting „LDCE‟ is
to be considered as selection for appointment by promotion or direct
recruitment, has been settled by a Coordinate Bench of this Court in
WP(C) 2887/2012 titled "Man Singh vs. Union of India and Ors."
and WP(C) 2893/2012 titled "Ajay Tripathi vs. Union of India and
Ors.". The Respondents‟ counsel argues to the contrary. We
accordingly extract hereinbelow the relevant portion of the said
judgment pertaining to this aspect of the matter:
"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 18 th
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 22 nd
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." (emphasis supplied)
10. On a specific query put by us to both counsel we are informed
that the judgment in Man Singh (supra) has attained finality and
there is no contrary view expressed by any other Court nor the
judgment has been challenged in appeal.
11. We, however, deem it expedient to clarify at this juncture that
it has been necessary for us to examine this issue in view of the fact
that the Respondents have prescribed two different medical standards,
one for appointments of Sub Inspectors through direct recruitment
and another for appointments on the basis of departmental promotions
in due course. It has, therefore, become imperative for us to place the
candidature of the Petitioners in the instant case in one of the
aforesaid slots viz., direct recruitment or departmental promotion.
12. Having heard learned counsel for the parties and perused the
notings 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 (reproduced hereinabove), we have no
hesitation in coming to the conclusion that appointments through the
LDCE would fall in the category of appointments by promotion being
in a manner of speaking accelerated promotions effected
departmentally though through competitive examinations. It has
been so clarified in the aforesaid notings and relying upon the same a
Coordinate Bench, as noted by us hereinabove, has already ruled that
appointments through the LDCE is a mode of fast track promotion.
The Respondents have themselves taken the position that
appointments through the LDCE is a mode of promotion. The
necessary corollary, to our mind, is 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 and not those which are applicable to
appointment of direct recruit candidates.
13. The next question which arises is whether different medical
standards have been prescribed by the Respondents for those selected
through LDCE and those promoted to the rank of Sub Inspector from
the feeder cadre in the same organization. Ms. Rekha Palli, learned
counsel for the Petitioner contends that the same rules would apply to
the existing force personnel who are elevated to a higher post
regardless of the fact whether it was by promotion in due course or by
fast track promotion by participating in the LDCE examination. She
further contends that applying one yardstick to those who are
promoted in the said post in due course from the post of Constable
and a different yardstick to the candidates appointed through LDCE
would yield absurd results. To illustrate her point, she submits that if
any personnel is rendered unfit for promotion by the LDCE in which
he has successfully participated on the ground of more stringent
standards, the said personnel would, after a period of time and in due
course become eligible for promotion in the regular course of events
on account of less stringent standards applicable to appointment by
promotion. Thus, the very same personnel at an older age would
become eligible for promotion in due course to the same post for
which he has been earlier declared unfit after clearing LDCE and
despite his being medically unfit.
14. Ms. Rekha Palli, learned counsel for the Petitioners heavily
relied upon a Division Bench judgment of this Court in WP(C)
No.5077/2008 titled "Sudesh Kumar and Ors. Vs. Union of India
and Ors." as well as the connected writ petitions to substantiate her
contentions. The relevant extracts of the judgment are 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 Sub-Inspector (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."
x x x x
"41. ........................................... 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."
15. We highlight the fact that the same situation as in Sudesh
Kumar (supra) prevails in the instant case. A Constable who has
undergone a laser surgery and is deemed fit to continue to work as a
Constable (and even adjudged to be in Medical Shape-I) cannot be
promoted through the LDCE to the post of Sub-Inspector with the
same degree of medical fitness. Eventually, such a Constable having
defective vision is also liable to be promoted in due course through
the regular promotion channel to the post of Sub Inspector again with
the same defect of medical fitness. This, to say the least, appears to
us to be arbitrary and discriminatory qua those who are promoted
through the LDCE.
16. In the aforesaid backdrop, it is deemed expedient to refer to the
instructions issued by the Ministry of Home Affairs, Per-II vide its
U.O. No.I-45023/1/2006-Pers-II (Part-III) dated 07.02.2008, which
are stated to be uniform guidelines for all CPFs on the parameters to
be checked during physical efficiency test and medical examination
of qualified candidates CPOs (SI) examination - 2007 onwards
conducted by SSC wherein head 17 of the said guidelines/parameters
is as under:
"17. The eyes
EYE SIGHT
a) Minimum distant vision should be 6/6 each eye
or 6/6 in dominant or shooting eye (6/6 right eye
in right handed person or 6/6 in Left eye in left
handed person) and 6/9 in other eye (6/9 in Left
in right handed person or 6/9 in right eye in left
handed person) without any type of correction
including contact lens or Corneal Laser
Surgery. Each eye must have full field of vision
as tested by hand movements. Any morbid
conditions of the eyes or lids liable to aggravate
or recur will be cause of rejection of the
candidate.
b) Squint of any degree will be cause for rejection.
In a left handed individual, who shoots from the left
shoulder, the visual standards for the two eyes will
be reversed.
Normally, a candidate should be able to close each
eye separately."
17. The aforesaid guidelines/parameters are heavily relied upon by
the Respondents to contend that though eventually the distant vision
of the Petitioners was found 6/6 B.E. but they had undergone laser
surgery of the eyes, hence were declared unfit by the Review Medical
Board as per the aforesaid guidelines.
18. Per contra, learned counsel for the Petitioners urges that the
aforesaid guidelines are applicable only in the case of direct
recruitment and have no application to those candidates who are
selected through the LDCE. In order to buttress her contention,
learned counsel for the Petitioners has relied upon the Central
Industrial Security Force (Subordinate Ranks) Recruitment Rules,
1999 as amended by the notification dated 28 th June, 2001 bearing
G.S.R. 484(E). The relevant portion of the said rules are extracted
hereinbelow:
"2. In the Schedule to the Central Industrial
Security Force (Subordinate Ranks) Recruitment
Rules, 1999, against serial number 4 relating to the
post of sub-Inspector (Executive), for the existing
entry the following entry shall be substituted,
namely:-
SCHEDULE
Name of the Number Classi- Scale Whether Age Whether Educational Qualification
Post of posts fication of selection limit for benefit of and
pay -cum- direct added physical standards for
seniority recruits years of direct
or service recruits
selection admissible
by merit under
Rule 30
of CCS
(Pension)
Rules,
1972.
4. Sub- Medical Standards :
Inspector (a) Eye sight :
(Executive) Distant Vision Near Vision
Better eye Worse eye
Corrected vision Corrected
Vision
6/6 6/12
OR
6/9 6/9 J-I J-II
Note: (a) Candidates for
appointment are required to
pass colour vision test.
(b) The candidates must not
have flat feet 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.
Whether age Period of Method of In case of recruitment by If a Circumstances
and probation recruitment Promotion/ Departmental in which Union
educational if whether by deputation/absorption Promotion Public Service
qualification any direct grades from which Committee Commission is
prescribed for recruitment or promotion/ exists, what is to be consulted
direct by deputation/ absorption to be its in making
recruits will deputation/ made composition recruitment
apply in the absorption
case of and
promotees percentage of
the
posts to be
filled by
various
methods
(ii) Promotion: From the
amongst the Asstt.Sub-
Inspector (Executive) who
have completed five years
service in the rank, being
in medical category
SHAPE-I and have
successfully completed
promotion cadre course of
Sub- Inspector/Executive
before being declared fit
for promotion.
19. From the aforesaid extract of the relevant rules, it is amply
clear that in case of recruitment by promotion from the post of
Assistant Sub Inspector (Executive) to the post of Sub Inspector
(Executive), the requirement is that he should have completed five
years service in the rank being in Medical Category Shape-I and
successfully completed promotion cadre course of Sub
Inspector/Executive before being declared fit for promotion. It is also
beyond cavil that Sub Inspectors, whether they are appointed by
direct recruitment or promoted through promotions in due course or
through LDCE perform identical functions and since CISF is a
paramilitary force, indubitably the medical standards of personnel
employed in the force must be of the highest order. This, however,
would not afford justification to the Respondents to draw a distinction
between those appointed to the post of Sub Inspector through LDCE
and those appointed by regular promotion in due course to Sub
Inspectors.
20. It is the admitted case of the parties that both the Petitioners are
in Medical Category Shape-I and have never been found to be
medically unfit in their Annual Medical Examination. It is also not in
dispute that both have rendered satisfactory service in the force and
there is no complaint of any nature pending against them. Both have
also performed creditably in the „LDCE‟. Adjudged by the
parameters of medical fitness laid down for promotion to the post of
Sub Inspector (Executive), both are qualified for the post as they have
been adjudged to be in Medical Category Shape-I which is the
requirement of the recruitment rules. As discussed by us
hereinabove, there is no logic or rationale in the prescription of
different medical standards for those recruited by regular promotion
and those recruited through „LDCE‟. Presumably for this reason, no
separate medical standards have been laid down for those who are to
be recruited through limited departmental examination. Accordingly,
in our view, for the existing force personnel who apply for
recruitment through the LDCE the medical shape category
determined for the visual standard in the case of recruitment by
promotion shall apply also to those who apply from the feeder cadre
for promotion through competitive examinations. In view of the
aforesaid, we hereby quash the findings of the Medical Board held on
06.01.2009 and the Review Medical Board held on 11.01.2011 in the
case of W.P.(C) 5421/2011 titled "Ravinder Lamba vs. Union of
India and Ors.". We also quash the findings of the Medical Board
held on 19.11.2010 and the Review Medical Board held on
14.03.2011 in the case of W.P.(C) 1938/2011 titled "Ajay Pandey vs.
Union of India and Ors.". Resultantly, the Petitioners are held
entitled to be promoted to the post of Sub Inspector (Executive)
through the „LDCE‟.
21. We note that the learned counsel for the Petitioners has fairly
conceded that in view of the time lapse since the filing of the writ
petition the Respondents would be within their rights to require the
Petitioners to undergo fresh medical examination prior to their
appointment. We are not informed as to whether the Petitioners still
are in the Medical Category of Shape-I and accordingly we direct that
the Respondents shall constitute a Board for the medical examination
of the Petitioners afresh within four weeks from today, which shall
take into consideration the cumulative facts set out in the present
order. In case the Petitioners are found medically fit for appointment
in terms of the present order, the Respondents shall issue the letters of
appointment to the Petitioners for the post of Sub Inspector as
expeditiously as possible and not later than six weeks from their
medical examination. In case, however, the Petitioners for any reason
are found medically unfit for appointment, the findings of the Medical
Board shall be forthwith communicated to the Petitioners to enable
them to take such measures as they may be advised to assail the same
in accordance with law. The Petitioners shall be entitled to notional
promotion with seniority upon their appointment which shall relate
back to the date when other personnel who participated in the LDCE
selection were appointed. We, however, clarify that there shall be no
entitlement to back wages.
22. The writ petitions are allowed in the above terms and stand
disposed of accordingly.
REVA KHETRAPAL
JUDGE
PRATIBHA RANI
JUDGE
July 28, 2014
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