Delhi High Court
Gaurav Dalal vs Union Of India Ministry Of Home ... on 18 January, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 10th January, 2022
Date of Decision: 18th January, 2022
+ W.P.(C) 6595/2021
GAURAV DALAL ..... Petitioner
Through Mr.Joby P.Varghese, Adv.
versus
UNION OF INDIA, MINISTRY OF HOME AFFAIRS &
ANR. ..... Respondents
Through Mr.Ranvir Singh and
Mr.Shoumendu Mukherji,
Advs.
Dr.Pranjal Dubey, Specialist
M.O/DC (Surgeon) CH Delhi.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J.
This petition has been heard by way of video conferencing.
1. This petition has been filed by the petitioner praying for a
direction to the respondents to set aside the result of the Detailed
Medical Examination (in short, „DME‟) dated 30.07.2019 as well as
the decision of the Review Medical Board (in short, „RMB‟) dated
08.12.2020, by virtue of which the petitioner was declared medically
unfit for appointment as Constable (GD) in the Central Armed Police
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By:SHALOO BATRA
Signing Date:20.01.2022
Forces (in short, „CAPFs‟) on the ground of „undescended testis‟. In
the alternative, the petitioner prays that Clauses 5(p), 6(28) and
(XIII)(3)(e) of the „Guidelines for Recruitment Medical Examination
in Central Armed Police Forces and Assam Rifles: Revised Guidelines
as on May 2015‟ (hereinafter referred to as the „Guidelines‟), to the
extent that they disqualify a candidate with „undescended testis‟, be
declared unconstitutional as being violative of Article 14, 19(1)(g) and
21 of the Constitution of India.
2. It is the case of the petitioner that pursuant to the advertisement
for appointment to the post of Constable (GD) under the Sports Quota
in the respondent no. 2, the petitioner preferred an application for
being considered for the said post. The petitioner is a national-level
Kabaddi player and has participated in several National, State and
Zonal-level Kabaddi events.
3. At the DME stage, vide order dated 30.07.2019, the petitioner
was declared medically unfit on the ground of „undescended testis‟.
The petitioner preferred an appeal against the finding of the DME and
underwent an examination before the RMB. The RMB, vide report
dated 08.12.2020, found the petitioner to be medically unfit on the
ground of „left sided undescended testes‟. The conclusion of the
undescended testis was arrived on the basis of the following
observation made by the RMB:
"c. Left testis not present in scrotum
d. Left testis not clinically palpable in left
Inguinal region/Abdomen."
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
Signing Date:20.01.2022
4. The learned counsel for the petitioner submits that the case of
the petitioner is not one of „undescended testis‟ but, in fact, of no
testis. He submits that the left testis of the petitioner was not found in
either the inguinal canal or in the abdomen. In this regard, he places
reliance on the report dated 25.03.2021 from the PGI, Chandigarh.
The learned counsel for the petitioner places reliance on an article by
the Boston Children‟s Hospital to submit that undescended testis is a
medical condition where even though the testicle has been formed, it
has not moved into the proper position. He submits that in the case of
the petitioner, as was corroborated by the examination report of PGI,
Chandigarh dated 25.03.2021, the petitioner‟s left testis was not
visualised in the left scrotal sac, inguinal canal and lower abdomen.
The left spermatic cord of the petitioner was not visualised as well.
Therefore, the case of the petitioner was of „no left testis‟ and not of
„undescended testis‟. He submits that therefore, the report of the DME
and RMB are incorrect.
5. The learned counsel for the petitioner submits that the
Guidelines in Clauses 5(p), 6(28) and Clause 3(e) of Part XIII
prescribe only „undescended testis‟ as a disqualification for
appointment to CAPFs and a case of „no testis‟ is not a
disqualification. He submits that therefore; the petitioner has been
wrongly declared as disqualified for appointment.
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
Signing Date:20.01.2022
6. The learned counsel for the petitioner submits that in the
alternative, Clauses 5(p), 6(28) and (XIII)(3)(e) of the Guidelines be
declared unconstitutional as they have become archaic, obsolete and
completely arbitrary. The learned counsel for the petitioner submits
that persons with „undescended testis‟ are otherwise medically and
physically fit and completely efficient to discharge their training as
well as duty, but are debarred from joining the services due to the
aforementioned clauses; making the said Clauses of the Guidelines
violative of Articles 14, 19 and 21 of the Constitution of India.
7. The learned counsel for the petitioner submits that the petitioner
is a national-level Kabbadi player and is fully fit for appointment in
the CAPFs.
8. We have considered the submissions made by the learned
counsel for the petitioner, however, find no merit in the same.
9. Clause(s) 5(p), 6(28) and (XIII)(3)(e) of the Guidelines are
reproduced herein below:-
"5. GENERAL EXAMINATION
While examining the candidates
(he/she) principal points which need careful
attention are as under
xxxx
p) Both the testes are in the scrotum
and of normal size.
6. GENERAL GROUNDS FOR
REJECTION
xxxx
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By:SHALOO BATRA
Signing Date:20.01.2022
28) Undescended testis, atrophic
testis, marked varicocele, testicular swellings
XIII. EXAMINATION OF INGUINAL
REGION AND GENITALS:
3. Look for-
xxxx
(e) Scrotum: Look if both the testes are in
the scrotal sac and of normal size. The
scrotum should be examined for Hydrocele,
Varicocele and abnormality of testis. Grade I
Varicocele is acceptable. Undescended
testis/ectopic testis and atrophic/hypotrophic
testis are considered as qualification."
10. A bare reading of the above clauses of the Guidelines show that
much emphasis has been laid in the Guidelines on the presence of both
testes in the scrotal sac of their being of normal size.
11. This Court, by its order dated 17.09.2021, had directed the
learned counsel for the respondent to place the medical records of the
petitioner on record. A perusal of the medical records shows that
though an Ultrasound report from one Parvesh Clinic opined that „Left
testis present slightly upward in inguinal canal‟, the RMB findings
were that „Left testis not present in scrotum‟ and „Left testis not
clinically palpable in left Inguinal region/Abdomen.‟
12. Dr. Pranjal Dubey, Splt. M.O (Gr-II)(SS)/DC (Surgeon), who
was one of the members of the RMB, was also present in the court
proceedings by video conferencing on 10.01.2022. He explained that
„undescended testis‟, which is a ground for medical unfitness under
the Guidelines, is a broad diagnosis. It incorporates ectopic testis,
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By:SHALOO BATRA
Signing Date:20.01.2022
intra-abdominal testis, atrophic testis and absent testis. He stated that
the case of „no testis‟, therefore, falls within the scope of
„undescended testis‟. He further explained that the complications
which may be caused due to „undescended testis‟ are malignancy
(seminoma), delayed fertility, social stigma leading to mental
depression and hormonal imbalance leading to hypogonadism. He
submits that the case of „no testis‟ is, therefore, also considered as a
medical disqualification for appointment to CAPFs.
13. Dr. Dubey was also directed to file a short-written note of his
opinion. In compliance with the direction, Dr. Dubey had emailed his
opinion dated 11.01.2022, the relevant extract whereof is as under:
"The candidate was declared UNFIT for
recruitment on medical grounds. He was found
to have Left Undescended Testis which as per
Revised Guidelines for Recruitment manual,
page no.35, XIII-3e is ground for rejection of
the candidate.
The argument which was presented during e-
hearing mainly emphasized that the case be
considered as absent or no testis and not
undescended testis.
I would like to mention at this point that the
term Undescended Testis is a broad diagnosis
meaning simply that the testis has not
descended from the abdomen to scrotum. This
condition incorporates ectopic testis, intra
abdominal testes, atrophic testes and absent
testes. Hence no testis or absent testis comes
within the gambit of Undescended testis.
The Ultrasound report which has been
presented in the supporting document has not
been issued by any certified radiologist. The
report has been signed by an MBBS doctor.
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By:SHALOO BATRA
Signing Date:20.01.2022
The complications of Undescended testis are
Malignancy (seminoma), delayed infertility,
social stigma leading to mental depression.
There are also chances of hormonal imbalance
leading to hypogonadism.
Hence ,the medical examination of the
candidate was carried out meticulously and
the clinical findings were noted . The
declaration of unfitness was taken in
accordance of the Revised guidelines of
Recruitment Manual 2015 CAPF and AR,
Ministry of Home Affairs."
14. In fact, even the article from Boston Children‟s Hospital
submitted by the petitioner along with the petition describes the
problems associated with an undescended testicle as under:-
"What are the problems associated with an
undescended testicle?
Undescended testicles can increase the risk of
infertility. Normally, when the testicles are in
the scrotum, they‟re about three to five degrees
cooler than they would be if they remained
inside the body's abdominal cavity. The
warmer temperatures inside the body may
impair the development of the testicles and
may affect the production of healthy sperm
when the boy is older.
Boys born with undescended testicles are also
slightly more prone to testicular cancer, even
after corrective surgery. The advantage of
surgery, however, is that it moves the testes
into a place that allows for routine self-
examination, which could lead to early
detection of any abnormalities later in life."
15. In view of the above report as well, it cannot be said that
Clauses 5(p), 6(28) and (XIII)(3)(e) of the Guidelines are in any
manner arbitrary or violative of Article 14, 19(1)(g) or 21 of the
Constitution.
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
Signing Date:20.01.2022
16. As far as the difference between a case of „undescended testis‟
and „no testis‟ contended by the learned counsel for the petitioner is
concerned, in the face of the opinion of Dr. Dubey; and in the absence
of no other material to the contrary being placed on record by the
petitioner, we find no merit.
17. In Km. Priyanka v. Union of India & Ors., W.P.(C)
10783/2020, this Court has held that the standard of physical fitness
for the Armed Forces and the Police Forces is more stringent than for
the civilian employment. It was held that it is the doctors of the Forces
who are well aware of the demands of duties and the physical
standards required to discharge the same. It further held as under:
"8. We have on several occasions observed
that the standard of physical fitness for the
Armed Forces and the Police Forces is more
stringent than for civilian employment. We
have, in Priti Yadav Vs. Union of India 2020
SCC OnLine Del 951; Jonu Tiwari Vs. Union
of India 2020 SCC OnLine Del 855; Nishant
Kumar Vs. Union of India 2020 SCC OnLine
Del 808 and Sharvan Kumar Rai Vs. Union
of India 2020 SCC OnLine Del 924, held that
once no mala fides are attributed and the
doctors of the Forces who are well aware of
the demands of duties of the Forces in the
terrain in which the recruited personnel are
required to work, have formed an opinion that
a candidate is not medically fit for recruitment,
opinion of private or other government doctors
to the contrary cannot be accepted inasmuch
as the recruited personnel are required to
work for the Forces and not for the private
doctors or the government hospitals and which
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By:SHALOO BATRA
Signing Date:20.01.2022
medical professionals are unaware of the
demands of the duties in the Forces."
18. The Guidelines also emphasize that they have been formed with
the aim that medically „fit‟ personnel are recruited to the CAPFs. The
aim of the Guidelines is stated in the following words:-
"1. AIMS
The purpose of medical standards is to ensure
that medically FIT personnel, accepted into
the central armed police forces of the union of
India, are:
(a) Free of contagious diseases which are likely to
endanger the health of other personnel.
(b) Free of medical conditions or physical
defects/infirmity that would lead to loss man-
hours on the ground of medical unfitness,
necessary treatment of hospitalization etc.
(c) Medically and physically capable of
satisfactorily completing required training.
Besides he may be asked to undergo strenuous
concourse like commando, jungle warfare etc.
(d) Adaptable to the combatised environment
without the necessarily of geographical area
limitations as he may be required to serve in
high mountains, air, sea or desert etc.
(e) Capable of performing duties without
aggravation of existing physical defects or
medical conditions.
(f) Free from physical defects/infirmity causing
any hindrance in proper wearing of uniform
combatised footwear or protective gears etc.
(g) Able to render continuous effective service, so
that the force does not have to pay early
pension or payments in case of premature
death."
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
Signing Date:20.01.2022
19. The Guidelines also state as it is not the sole repository of all
ailments and that the recruiting medical officer needs to use his
clinical acumen, to the best of his knowledge and keeping in view the
best interests of the Forces. Clause 2(h) of the Guidelines is
reproduced hereinbelow:-
"GENERAL INSTRUCTIONS FOR
RECRUITMENT BOARD
xxxx
h) Human body may contain so many
defects/deformities that it is not possible to list
all causes of unfitness in the medical
recruitment instructions that may militate
against efficient discharge of service. Neither
is it possible to list all trifling cases where the
candidate may be accepted/rejected.
Therefore, the recruiting medical officer needs
to use his clinical acumen, to the beset of his
knowledge and keeping in view the best
interests of the forces. If the cause of rejection
is not mentioned in these instructions, it has to
be co-related to an infirmity with reference to
either known medical literature on the subject
or a parameter set out. In case of unfitness,
where no known references are available the
defect/infirmity may be elaborately justified
with reference to service requirement for
which the candidate is being rejected."
20. Recently, this Court, in its judgment dated 04.01.2022 in
Milash Arrol Noronha vs. Union of India, W.P. (C) 13904/2021, had
emphasized that the Guidelines cannot be said to be laying down all
the complex ailments/grounds that would make a candidate unfit for
appointment to Armed Forces. It was held as under:-
"14. As far as the submission of the petitioner
that only the lower limit of Haemoglobin was
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By:SHALOO BATRA
Signing Date:20.01.2022
prescribed in the Medical Manual and not the
higher ceiling limit, we are of the opinion that
the Medical Manual cannot be stated to be the
sole repository of all ailments that may make a
person medically unfit for appointment in the
Armed Forces. The doctors conducting the
medical examination are the best judge to
understand the complexity of the human body
and the myriad of ailments that it may suffer
from and the repercussions thereof. Medical
Manual cannot lay down all the complex
ailments/grounds that would make a candidate
unfit for appointment to Armed Forces, whose
demands are most extracting with the
personnel being posted to extreme weather
conditions."
21. In view of the above, the purported difference in the case of
„undescended testis‟ and „no testis‟ argued by the learned counsel of
the petitioner is of no assistance to the petitioner and cannot be
accepted.
22. In view of the above stated reasons, we find no merit in the
present petition. The same is dismissed. There shall be no order as to
cost.
NAVIN CHAWLA, J
MANMOHAN, J
JANUARY 18 , 2022/AB
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
Signing Date:20.01.2022
