Solanki Virenrasinh Khumansinh vs Union Of India
2021 Latest Caselaw 725 Guj

          C/SCA/16862/2020                                               ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 16862 of 2020
                                With
            R/SPECIAL CIVIL APPLICATION NO. 16864 of 2020
                                With
            R/SPECIAL CIVIL APPLICATION NO. 16859 of 2020
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                    SOLANKI VIRENRASINH KHUMANSINH
                                 Versus
                             UNION OF INDIA
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Appearance:
MS.NAMRATA J SHAH(6534) for the Petitioner(s) No. 1
MR. PARTH H BHATT(6381) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4,5,6
NOTICE SERVED BY DS(5)-G/5 for the Respondent(s) No. 2
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 CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
        and
        HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                      Date : 19/01/2021
                   COMMON ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. This court, while issuing the notice, passed the following order:-

"1. Petitioner is before this Court seeking following reliefs: -

"(A) Your Lordships may be pleased to issue a Writ of Mandamus or any other writ and quash and set aside the action of the Respondents in rejection of the Petitioner for the post of Constable under the Central Industrial Security Force on being declared unfit for having scars of tattoo removal on the right side of forearm at Annexure-H;

(B) Your Lordships may be pleased to direct the respondents to reconsider the case of the petitioner treating him fit candidate for the post of Constable;

(C) During pendency and final disposal of the present petition, Your Lordships may be pleased to direct the respondents to reconsider the case of the petitioner treating him fit candidate for the post of Constable for further recruitment process;

OR IN THE ALTERNATIVE

During the admission, final hearing and pendency of the petition be pleased to direct the respondents to reserve the

C/SCA/16862/2020 ORDER

seat for the petitioner for the post of Constable till the final disposal of this petition;

OR IN THE ALTERNATIVE

During the admission, final hearing and pendency of the petition, be pleased to stay the Respondents from issuing appointment orders to any candidates till final disposal of the petition;

(D) Pass any such other and/or further order that may be thought just and proper, in the facts and circumstances of the present case;

(E) Award cost of this petition."

2. In the advertisement issued for the posts of Constable (General Duty) in Border Security Force (BSF), Central Industrial Security Force (CISF), Central Reserve Police Force (CRPF), Indo-Tibetan Border Police (ITBP), Sashastra Seema Bal (SSB), National Investigation Agency (NIA), Secretariat Security Force (SSF) and Rifleman (General Duty) in Assam Reliefs, recruitment process had been initiated consisting of Computer Based Examination, Physical Efficiency Test, Physical Standard Test and Medical Examination.

3. The petitioner herein has cleared all the tests except the Medical Examination Test where on the ground that he is having tattoo of about 2*2cm on the right side of his forearm, he was declared medically unfit.

3.1. He also filed an appeal against the findings of the medical examination. Thereafter, a Review Medical Examination was conducted on 28.09.2020 and he was declared unfit on the ground of removal of tattoo.

3.2. Prior to the Review Medical Examination, he already got his tattoo removed, however, on the ground of removal of tattoo, he was declared medically unfit.

4. Issue Notice for final disposal returnable on 12.01.2021. The service of notice through e-mode is permitted.

5. Copy of this order be given to learned Standing Counsel Mr. Parth Bhatt."

2. Today, the learned Central Government Standing Counsel Mr. Parth Bhatt, appearing for the respondent Nos.1 to 3 has although made a request for filing the reply, he also showed the preparedness to argue the matter so far as the interim relief is concerned. Noticing the fact that the result is to be declared tomorrow, there was an urgency, we could not have acceded to

C/SCA/16862/2020 ORDER

the request of filing of the reply and therefore, we heard both the sides at length. Mr. Parth Bhatt has emphasised on non- applicability of the judgment of other High Courts by pointing out at the factual matrix.

3. We have noticed that in case of the petitioner, the tattoo has already been removed and the certificate received or at the time of Review Medical Examination report, is to the effect that "no tattoo seen over right forearm" and final opinion shows that he is unfit on account of tattoo removal right forearm.

4. Noticing at a prima facie stage, the notice of Staff Selection Commission, the clearance of two examinations being computer based examination as well as physical efficiency test, coupled with the decisions of the Bombay High Court and Gauhati High Court, particularly of Shridhar Mahadeo Pakhare vs. Union of India rendered on 30.1.2018 which as given to understand is not challenged further before the Apex Court, we deem it appropriate to avail the opportunity to the respondent to file a detailed reply and till then, interim relief in terms of paragraph 9(C), alternative relief, the respondent shall reserve a seat for the petitioner till the final disposal. The reply shall be filed within three weeks as requested for. The rejoinder, if any, shall be filed within two weeks.

5. The matters shall be heard peremptorily on 23.2.2021. The petitioner shall in no manner cause any delay in hearing of these matters finally.

(SONIA GOKANI, J)

(SANGEETA K. VISHEN,J) BINOY B PILLAI