Rakesh Kumar vs Union Of India Through Secretary
2023 Latest Caselaw 2248 j&K

                                                                Sr. No.25

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
Case : SWP No. 2176/2016
       CM No. 1625/2021

1.   Rakesh Kumar, Age 25 years,
     S/o Sh. Janak Raj,
     R/o Village Pindi Charkan Kalan
     Tehsil Arnia, District Jammu.
2.   Lekh Raj, Age 28 years,
     S/o Shish Paul,
     R/o Village Chohala,
     Tehsil R.S.Pura, District Jammu.
3.   Sat Paul, Age 22 years,
     S/o Mani Ram R/o Village Jourian
     Tehsil Akhnoor, District Jammu.
4.   Varun Raj, Age 22 years,
     S/o Bharat Bhushan R/o Village
     Jourian, Tehsil Akhnoor, District
     Jammu.                                                .....Petitioner(s)..

                    Through :- Mr. Rajesh Bhushan, Advocate.

               Vs

1.   Union of India through Secretary
     Ministry of Home Affairs, Sena
     Bhawan, New Delhi.
2.   Secretary to the Government of India
     Ministry of Personnel, Public
     Grievances and Pensions, New
     Delhi.
3.   Director Staff Selection Commission,
     Block No.12, Cgo Complex, Lodhi
     Raod, Delhi-110003.
4.   Regional Director Staff Selection
     Commission (NWR) Block No.3, Gr.
     Floor, Kendriya Sadan Sector-09,
     Ground Floor Chandigarh-160017.
5.   Deputy Regional Director Staff
     Selection Commission (NWR) Block
     No.3, Gr. Floor, Kendriya Sadan
     Sector-09, Ground Floor Chandigarh,
     160017.
6.   Director General, Central Reserve
     Police (CRPF) Block No. 1, C.G.O
     Complex Lodhi Road, New Delhi
     110003.

7.   Inspector General of Police (IGP),
     Central Reserve Police Force
                                               2                        SWP No. 2176/2016




        (CRPF), Bantalab, Jammu.
8.      Inspector General (IG), Border
        Security Force (BSF), Paloura Camp,                             .....Respondent(s)..
        Jammu.

                       Through :- Mr. Sandeep Gupta, CGSC.

Coram:      HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                       ORDER

10.10.2023

1. The amended writ petition has been preferred by the petitioners seeking

inter alia the following reliefs:-

i) Certiorari for the quashment of the report of medical board and review medical board vide which petitioners were declared as medically unfit for the reason that petitioners were having tattoos on their body.

ii) Mandamus commanding the respondents to select and appoint the petitioners as constables in the paramilitary forces against the vacancies advertised by the respondent Staff Selection Commission published in the employment news/Rozgar Samachar dated 24.01.2015 as petitioners are duly selected for the said post by the respondents but the respondents have denied the same to the petitioners in an arbitrary and malafide manner.

iii) Any other order or direction which this Hon'ble Court deems fit and proper may kindly be issued in favour of the petitioners and against the respondents."

2. Brief facts of the case as projected in this petition are that the

petitioners in response to an Advertisement Notice published in the

employment new paper/Rozgar Samachar dated 24.01.2015 issued by

the respondents, the petitioners being fully eligible for the post of

Constable GD in Border Security Force (BSF) cleared all the

examinations. It is pertinent to mention here that petitioner Nos. 1 &2

applied under SC category and petitioner Nos. 3 & 4 applied under

OBC category. Learned counsel for the petitioners submits that the

physical standards test of the petitioners was held on 08.06.2015 at

STC BSF Camp, Udhampur. The petitioners participated in the said

test and were declared as qualified by the respondents. They were,

thereafter, called for written examination and were qualified the

same. Learned counsel for the petitioners further submits that a

detailed medical examination of the petitioners was held at BSF

Campus, Udhampur. However, during the course of medical

examination, the petitioners were declared as medically unfit by the

respondents as some tattoo marks were found present on the arms and

other body parts of the petitioners. After the petitioners were declared

medically unfit, they were informed that in case they intend to file an

appeal against the finding of the medical examination declaring them

medically unfit for the post, they shall have to apply for review for

medical examination after obtaining necessary medical certificate

from any Civil Medical Practitioners within a period of fifteen days.

3. Learned counsel for the petitioners further submits that the petitioners

underwent a surgery for the removal of the said tattoos from their

body at the instance of the respondents and after surgery the said

tattoos were removed and were declared as medically fit by the

Doctors who operated upon the petitioners. After obtaining the

medical fitness certificate, the petitioners filed an appeal before the

respondents for the review of the findings of medical board. The

appeal was considered by the competent authority and, accordingly,

the petitioners were again declared unfit despite the fact that the said

tattoos already stands removed by the petitioners after undergoing

surgery.

4. The impugned action of the respondents has been challenged by the

petitioners on the grounds that the tattoos found on the arms and

other body parts of the petitioners had no affect on the working of a

Constable GD in BSF.

5. On being put on notice, the respondents have filed their objections in

which it is submitted that the certificates obtained by the petitioners

from the Doctor in general in nature, as according to the said Doctor,

the petitioners may be fit to serve in civil department because of the

nature of duties to be performed in civil job which are entirely

different from the nature of duties of the Armed Forces. It is further

submitted that the recruitment process have been observed

judiciously, meticulously and only medically fit and successful

candidates have been considered for appointment of the post of

Constable GD in said recruitment, whereas the petitioners could not

qualify in medical/review medical examination for the recruitment of

the post of Constable GD. Therefore, no fundamental as well as legal

right of the petitioners have been violated by the respondent-

authorities, which forced them to approach before this Hon'ble Court.

6. Heard learned counsel for the parties and perused the material on

record.

7. The record shows that the petitioners have successfully cleared all the

tests. However, their candidature were rejected by the Review

Medical Board on the ground that there is a post surgical scar on right

forearm i.e. saluting arm and right upper arm of the petitioners and

that the surgical removal of the tattoos may develop keloids.

8. During the course of arguments guidelines for recruitment/medical

examination in CAPF and Assam Rifles which was revised in May

2015, Chapter-XII and concerns with the examination for skin

diseases and leprosy were referred to by the counsels. The candidate

can be rejected on the medical ground also if there is congenital or

acquired anomalies of skin such as nevi or vascular tumors that

therefore with function or are exposed to constant irritation. History

of Dysplastic Nevus Syndron is disqualifying. Also, Keloid

formation, if the tendency is marked or interferes with proper

wearing of combatised equipment, is disqualifying.

9. Learned counsel has referred to sub-clause (3) of Clause 11 of

Chapter-XII which deals with tattoo condition. The same is

reproduced as under:

"3.Tattoo: The practice of engraving/tattooing in India is prevalent since time immemorial, but has been limited to depict the name or a religious figure, invariably on inner aspect of forearm and usually on left side. On the other hand the present young generation is considerably under the influence of western culture and thus the number of potential recruits bearing skin art had grown enormously over the years, which is not only distasteful but distract from good order and discipline in the force.

Following criteria are to be used to determine permissibility of tattoo:

(a)Content-being a secular country, the religious sentiments of our countrymen are to be respected and thus tattoos depicting religious symbol or figure and the same, as

followed in Indian Army, are to be permitted.

(b)Location- tattoos marked on traditional sites of the body like inner aspect of forearm, but only left forearm, being non saluting limb or dorsum of the hands are to be allowed.

(c) Size-size must be less than ¼ of the particular part (elbow or hand) of the body".

Sub-clause (4) of Clause 11 of Chapter XII deals with Post-operative cases (duration of fitness) which too is reproduced hereunder:

"4.Post operative cases (Duration for fitness)-

(a) Body surface swelling, DNS, Tonsillectomy and nasal polypectomy-01 month;

(b) Hydrocele-03 months;

(c)Tympanoplasty-04 months; and,

(d) Abdominal"

This is all prescribed in the revised Guidelines of 2015 which are

relevant for determining the issue on hand.

10. It cannot be disputed that the doctors certifying the removal of tattoo

have also certified that the petitioners are medically fit for the post in

question. The Medical Board while reviewing the case of the petitioners

have not mentioned that inspite of the fact that the tattoos stands removed

from the forearm of the petitioners, they cannot otherwise perform their

functions of Constable GD and, therefore, should not have normally been

the reason for declaring the petitioners unfit for the job.

11. Learned counsel for the petitioners has referred to the judgment passed by

this Court in case titled Sunil Kumar v. Union of India and others,

decided on 21.02.2023 and argued that the same applies in the case in

hand.

12. Learned counsel for the respondents could not counter the argument of

counsel for the petitioner though he feebly tried to argue that the case of

the petitioners is different from the one in writ petition SWP No.

2108/2016. The guidelines altogether disqualify the petitioners from

being considered for the post, as argued by respondents, cannot be

accepted, if they can otherwise perform the duties efficiently.

13. The Court is of the view that the judgment of Sunil Kumar (supra) applies

on all fours in the present petition and the court need not take the view

different from the one taken in the said writ petition.

14. The petition can be disposed of as per the directions given in the said writ

petition.

15. Accordingly, the petition is allowed and the respondents are directed to

again convene the Medical Board for re-examination of the petitioners

and offer them appointment, if they are found fit to perform the duties of

Constable GD in terms of the revised guidelines of 2015. The needful

shall be done within a period of three months from the date a certified

copy of this judgment is made available with the concerned

respondent(s).

16. Disposed of in above terms.

(PUNEET GUPTA) JUDGE Jammu :

10.10.2023 Pawan Chopra

Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No

PAWAN CHOPRA 2023.10.12 16:36 I attest to the accuracy and integrity of this document