Delhi High Court
Mohan Reddy vs Union Of India & Ors. on 12 February, 2015
Author: Pradeep Nandrajog
$~21 & 22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : February 12, 2015
+ W.P.(C) 1315/2015
SATVIR SINGH ..... Petitioner
Represented by: Ms.Rekha Palli, Advocate with
Ms.Garima Sachdeva and Ms.Ankita
Patbaik, Advocates
versus
UNION OF INDIA & ORS ..... Respondents
Represented by: Ms.Jyoti Dutt Sharma, Advocate with
Mr.Arun Kumar, Advocate
W.P.(C) 1320/2015
MOHAN REDDY ..... Petitioner
Represented by: Ms.Rekha Palli, Advocate with
Ms.Garima Sachdeva and Ms.Ankita
Patbaik, Advocates
versus
UNION OF INDIA & ORS ..... Respondents
Represented by: Ms.Jyoti Dutt Sharma, Advocate with
Mr.Arun Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
1. The question whether appointment by selection pursuant to a Limited
Departmental Competitive Examination is promotion or direct recruitment
has been decided by a decision in W.P.(C) No.2887/2012 Man Singh Vs.
UOI & Ors. holding that it is a case of promotion, on the reasoning in paras
17, 18 and 19 as under:-
"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 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.
-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." (emphasis
supplied)
2. Thus, as held by this Court in the decision dated July 28, 2014 in
W.P.(C) No.1938/2011 Ajay Panday Vs. UOI & Ors., the applicable medical
norms to determine fitness of the two petitioners who seek promotion to the
post of Sub-Inspector (Executive) after clearing the Limited Departmental
Competitive Examination have to be those as are applicable to promotee
officers and not direct recruits.
3. The next question for which we need to note the fact is that the writ
petitioners had their visions corrected after undergoing Lasik Surgery, and
learned counsel for the respondents who has obtained instructions informs
that post surgery both writ petitioners have achieved the prescribed visual
standard, but justifies non-grant of promotion on the ground that the norm
for a direct recruit is that the standard vision should be without surgical
intervention.
4. Similar was the position with Ajay Panday, and deciding the writ
petition filed by him, the Division Bench extracted paras 2 and 41 of an
earlier decision in W.P.(C) No.5077/2008 Sudehs Kumar & Ors. Vs. Union
of India & Ors. as under:-
"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."
xxxx
"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."
to hold in paragraphs 15 to 20 as under:-
"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:
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
28th 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 Number Classification Scale Whether Age limit Whether Educational
the Post of Posts of selection- for direct benefit of Qualification
Pay cum- recruits added and physical
seniority years of standards
or service for direct
selection admissible recruits
by merit under
Rule 30 of
CCS
(Pension)
Rules,
1972.
4. Sub- Medical
Inspector Standards:
(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 If a Circumstances
and probation recruitment recruitment by Departmental in which Union
educational if any whether by Promotion/deputatio Promotion Public Service
qualification direct n/absorption grades Committee Commission is
prescribed recruitment from which exists, what is to be consulted
for direct or by promotion/deputatio its in making
recruits will deputation/ n/absorption to be composition recruitment
apply in the absorption made
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/E
xecutive
before
being
declared fit
for
promotion.
5. Thus, on the reasoning aforesaid Ajay Panday, whose eyesight was
found to be within the limit prescribed post Lasik Surgery was held entitled
to be given appointment by promotion to the rank of SI (Exe.).
6. Learned counsel for the respondent concedes to the point that the
decision dated July 28, 2014 qua Ajay Panday has been implemented and
there is complete parity between the petitioners and Ajay Panday because
the two writ petitioners and Ajay Panday joined as constables and were
successful at the Limited Departmental Competitive Examination for
appointment by promotion as Sub-Inspectors. All three have corrected
vision after Lasik.
7. Thus, the two captioned writ petitions are allowed and a mandamus is
issued in terms of para 21 of the decision in Ajay Panday's case, which
reads as under:-
"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."
PRADEEP NANDRAJOG, J.
PRATIBHA RANI, J.
FEBRUARY 12, 2015
mamta
