Amarjith M vs Union Of India
2021 Latest Caselaw 14229 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                     &
                 THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
          Thursday, the 8th day of July 2021 / 17th Ashadha, 1943
                             WA NO. 699 OF 2021

   AGAINST JUDGMENT DATED 07.04.2021 IN WP(C) 25606/2020 OF THIS COURT.

                                      ---

APPELLANTS/PETITIONERS:

1.AMARJITH M., AGED 23 YEARS,S/O.UTHAMAN K.,

  RESIDING AT KARIMBAN CHALIL,KANHIRODE P.O.,

  KANNUR, KERALA - 670 592.

2.GOKULRAJ P., AGED 27 YEARS, S/O.PEECHIMUTHU, RESIDING AT 256/8,

  PALATHULLY JUNCTION,PERVAMBA P.O.,PALAKKAD,KERALA -678 531.

3.DHANESH P.,AGED 24 YEARS, S/O.VELAYUDHAN P.,

  RESIDING AT KALATHUMPADI HOUSE,VADAKKUMPAD,

  MANNUR P.O.,KOZHIKODE, KERALA -673 328.

BY ADVS.M/S.NAVOD PRASANNAN & K.V.KRISHNAKUMAR

RESPONDENTS/RESPONDENTS:

1.UNION OF INDIA,REPRESENTED BY ITS SECRETARY,

  MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND PENSION,

  DEPARTMENT OF PERSONAL AND TRAINING,NORTH BLOCK,NEW DELHI -110 001.

2.MINISTRY OF HOME AFFAIRS,REPRESENTED BY ITS SECRETARY,

  NORTH BLOCK, NEW DELHI - 110 001.

3.STAFF SELECTION COMMISSION,

  REPRESENTED BY ITS REGIONAL DIRECTOR (KKR),1ST FLOOR,"E" WING,

  KENDRIYA SADAN,KORAMANGALA,BENGALURU, KARNATAKA -560 034.



                                                                    P.T.O.
 4.CENTRAL ARMED POLICE FORCES, REPRESENTED BY JOINT SECRETARY

  (COORDINATION AND INTERNATIONAL COOPERATION),

  MINISTRY OF HOME AFFAIRS,NORTH BLOCK,NEW DELHI -110 001.

5.DIRECTORATE GENERAL,

  CENTRAL RESERVE POLICE FORCE (RECRUITMENT BRANCH),

  EAST BLOCK-07,LEVEL-04,SECTOR-01,R.K.PURAM,NEW DELHI -110 066.

6.INSPECTOR GENERAL, FRONTIER HEAD QUARTERS,

  BORDER SECURITY FORCE, YELAHANKA P.O.,BANGALORE,KARNATAKA - 560 064.

7.COMMANDANT, HQR 162 BN., BORDER SECURITY FORCE, KAINUR CAMP,

  MULAYAM P.O., THRISSUR, KERALA - 680 751.

8.DETAILED MEDICAL BOARD, REPRESENTED BY ITS PRESIDING OFFICER,

  CONSTABLES (GD) EXAMINATION, 2018, GROUP CENTRE, HQR 162 BN.,

  BORDER SECURITY FORCE, KAINUR CAMP, MULAYAM P.O.,

  THRISSUR, KERALA - 680 751.

9.DEPUTY INSPECTOR GENERAL OF POLICE, GROUP CENTRE,

  CENTRAL RESERVE POLICE FORCE,PALLIPURAM,THIRUVANANTHAPURAM -695 316.

10.REVIEW MEDICAL BOARD, REPRESENTED BY ITS PRESIDING OFFICER,

  CONSTABLES (GD) EXAMINATION, 2018, GROUP CENTRE,

  CENTRAL RESERVE POLICE FORCE,PALLIPURAM,THIRUVANANTHAPURAM -695 316.




                                                                   P.T.O.
 11.CHIEF MEDICAL OFFICER, REVIEW MEDICAL BOARD,

   CONSTABLES (GD) EXAMINATION, 2018, GROUP CENTRE,

   CENTRAL RESERVE POLICE FORCE,PALLIPURAM,THIRUVANANTHAPURAM -695 316.

BY SRI.P.VIJAYAKUMAR, ASSISTANT SOLICITOR GENERAL OF INDIA


     Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to direct Respondents 3 to 6 to constitute a Medical Board consisting of
combatised medical officers and independent experts from Government
Medical College, Trivandrum for conducting Medical Examination of the
Appellants and direct Respondents 3 to 6 to issue e-admit card to the
Appellants for attending the medical examination, pending disposal of the
Writ Appeal.


     This Writ Appeal coming on for orders along with connected cases on
08.07.2021 upon perusing the appeal memorandum, the court on the same day
passed the following:

                                                                  P.T.O.
         ALEXANDER THOMAS & A. BADHARUDEEN, JJ.
   ----------------------------------------------------------------------
            W.A. Nos. 699, 703, 777, 700 & 782 of 2021
           [arising out of the impugned judgment dated 7.4.2021 in
     respective W.P.(C) Nos. 25606, 26339, 22475, 26799 & 22475 of 2020]
   ----------------------------------------------------------------------
                  Dated this the 8th day of July, 2021

                                ORDER

W.A. Nos. 699, 703 & 777 of 2021

Altogether there are 8 appellants in these three

appeals arising out of the impugned common judgment rendered

by the learned Single Judge on 7.4.2021 in these writ petitions

concerned and connected matters.

2. The case of the writ appellants in these three appeals is

to the effect that the appellants have successfully cleared almost

all the stages of impugned selection process for the post of

Constable (General Duty) in various central police and

paramilitary forces, and that they have cleared the Computer

Based Examination, Physical Efficiency Test, Physical Standard

Test (PST) and they are now disqualified solely on the ground that

they have not fulfilled certain medical parameters in the process

of the Detailed Medical Examination (DME) and the Review

Medical Examination (RME). These 3 appellants are disqualified

on the ground that the Inter-Malleolar Distance between the legs W.A. Nos. 699, 703, 777, 700 & 782 of 2021

..2..

is exceeding the permissible limit of 5 cm.

3. Sri.Navod Prasannan, learned counsel appearing for

the appellants in these cases would urge that it is the standard

medical and scientific procedure that the Inter-Malleolar Distance

between the legs has to be measured for the person concerned only

in the lying down position and not in the standing up position, and

the measurement is to be done with wooden blocks and not

through the method of X-rays etc. Further, it is alleged that in the

instant case both for the Detailed Medical Examination (DME)

and the Review Medical Examination (RME), the doctors

concerned have measured the Inter-Malleolar Distance of these

appellants in standing up position and not in the lying down

position, and it has been so measured on the basis of X-rays and

not by the standard procedure of using wooden blocks. According

to the appellants, therefore, the official respondents have plainly

violated their own procedure in assessing these medical

parameters and that both the Detailed Medical Examination Board

and the Review Medical Examination Board have committed

serious illegality and impropriety in rejecting the cases of these

appellants on the ground that the Inter-Malleolar Distance W.A. Nos. 699, 703, 777, 700 & 782 of 2021

..3..

exceeds 5 cm. The appellants would also point out that, as a matter

of fact, the appellants have got themselves examined through State

Government Medical Colleges in Kerala and the medical experts

have clearly opined after measuring the Inter-Malleolar Distance

in the lying down position using wooden blocks that it does not

cross the threshold limit of 5 cm.

4. Sri.P.Vijayakumar, learned Assistant Solicitor General

of India appearing for the respondents seeks short time to get

instructions in the matter.

5. Time granted. In that regard, the official respondents

will furnish specific and precise factual instructions on the

correctness or otherwise of the abovesaid factual assertions made

by the appellants as referred to hereinabove, and also it has to be

specifically stated before this Court as to whether it is standard

medical procedure that the Inter-Malleolar Distance is to be

measured only in the lying down position using wooden blocks,

and whether in the instant case the Detailed Medical Examination

(DME) and the Review Medical Examination (RME) have been

conducted in respect of these appellants in the standing up

position and using X-rays, etc. A copy of the relevant guidelines W.A. Nos. 699, 703, 777, 700 & 782 of 2021

..4..

and procedures for the conduct of the Detailed Medical

Examination (DME) and the Review Medical Examination (RME)

should also be made available along with a statement/memo of the

Assistant SGI.

6. The appellants will also file affidavits in each of these

appeals dealing precisely the abovesaid factual aspects, and they

may also produce copies of relevant guidelines and procedures,

and also extract from authoritative medical textbooks to establish

that it is standard medical procedure that the Inter-Malleolar

Distance is to be measured only in the lying down position using

wooden blocks, and not in the standing up position and not by

using X-rays, etc.

7. If the abovesaid factual assertions made by Sri.Navod

Prasannan, learned counsel appearing for the appellants in these

cases are correct that the appellants certainly have a very strong

case in the matter. The selection process is now on going and in

view of the rejection of these appellants on the abovesaid grounds,

candidates having lower merit than them may take their place.

At the same time, if we straightaway issue interim directions to

appoint them, the said approach will not be correct. Hence, taking W.A. Nos. 699, 703, 777, 700 & 782 of 2021

..5..

into account the prima facie case and the balance of convenience

of both sides, it is ordered that 8 vacancies in the post of Constable

(General Duty) in the above selection process to which the

appellants would have been otherwise selected, shall not be

filled up.

8. The learned Assistant Solicitor General of India has

pointed out before us that already in view of the interim order

passed by the learned Single Judge in another matter, the

respondents have already set apart and have not filled

100 vacancies or so.

9. If the said 100 vacancies now kept apart and which is

remaining unfilled can take care of the claims of the present

8 appellants as well, then it is for the respondents to ensure

compliance of the abovesaid interim direction passed by us in that

manner. The cardinal aspect is that if the appellants succeed in

these cases, then the respondents should not come with the plea

that the vacancies have already been filled up.

10. These cases will have to be disposed of without any

further delay. Ten days is granted to the learned Assistant Solicitor

General of India to get instructions and to file statement, W.A. Nos. 699, 703, 777, 700 & 782 of 2021

..6..

if required. In the meanwhile, the appellants shall also file their

affidavits as afore directed.

List these appeals along with W.A.Nos.700 & 782 of

2021 on 22.7.2021.

W.A. No. 700 of 2021

11. The selection process is the same as the one in the

above referred appeals. In the instant case the ground of rejection

is that, though the bodyweight of the appellant was recorded as

87 kg at the Physical Standard Test (PST) as per Ext.P-2 {See page

48 of the paper book of W.A.No.700/2021}. In the RME process the

bodyweight of the appellant was found as 78 kg as per Ext.P-7 {See

page 53 of the paper book of W.A.No.700/2021}. It is urged by the

counsel for the appellant that since bodyweight of the appellant is

indisputably recorded as 78 kg, which would come within the

permissible variance limit of +/- 5 kg, vis-a-vis the maximum

limit (as the same is 73 kg + 5 kg = 78 kg). Hence, it is pointed out

that the rejection of the selection of the appellant herein on the

ground that the exceeds the permissible limit is patently factually W.A. Nos. 699, 703, 777, 700 & 782 of 2021

..7..

and legally wrong.

12. The learned Assistant Solicitor General of India will get

specific factual instructions from the competent respondent

authorities concerned on the abovesaid aspects urged by the

appellant, and may also file a copy of guidelines and procedures

which deals with these medical parameters including bodyweight,

and whether there is any clause for variance of the lower limit and

upper limit of bodyweight.

13. The appellant will also file an affidavit in this case on

the aforementioned aspects.

14. As ordered hereinabove in the other three cases, it is

also directed that the respondents shall ensure that one vacancy in

the post of Constable (GD) be kept vacant till the disposal of this

case.

List this appeal along with W.A. Nos. 699, 703, 777 &

782 of 2021 on 22.7.2021.

W.A. No. 782 of 2021

15. There are two appellants in this writ appeal. The first

appellant has been found medically unfit as per Ext.P-3 {See page W.A. Nos. 699, 703, 777, 700 & 782 of 2021

..8..

85 of the paper book of W.A.No.782/2021} on the ground that he is

suffering from the condition that "Giant Melonorytyi Hairy

Nerves". The second appellant has been disqualified on the ground

that he suffers from "Deviated Nasal Septum" as per Ext.P-3(c)

{See page 88 of the paper book of W.A.No.700/2021}.

16. It is urged by the appellants' counsel that the abovesaid

conditions referred to in Exts.P-3 & P-3(c) are not acceptable

grounds for medical disqualification of a candidate in the selection

process as per the guidelines and norms. It is also pointed out that

the appellants have also approached the specialist doctors in the

State Government Medical Colleges. Ext.P-1 is the certificate issued

by the Medical Board of the Govt. Medical College Hospital,

Thiruvananthapuram, in the case of the first appellant, wherein it

is stated that the abovesaid condition referred to therein is not a

serious medical condition so as to hold that the person is suffering

from any medical unfitness. So also, Ext.P-1(c) has been issued by

the Medical Board of the Government District Hospital, Nilambur,

in the case of second appellant wherein it has been certified that

the medical opinion in Ext.P-3(c) is an error of judgment which is

borne out from nasal examination, etc. W.A. Nos. 699, 703, 777, 700 & 782 of 2021

..9..

17. If the abovesaid conditions allegedly to these

appellants as per Exts.P-3 & P-3(c) will not fall within any of the

enumerated grounds for medical disqualification in the abovesaid

process, and the abovesaid conditions are not that serious as

certified by the State Health authorities, then the appellants have

made out a strong case in this matter. Accordingly, it is ordered

that the learned Assistant Solicitor General of India will get specific

instructions on the abovesaid factual contentions of the appellants

and also should produce a copy of the guidelines/norms which

contain the acceptable grounds of medical disqualification of

candidates in the above selection process. Further, it is also

ordered that two vacancies in the post of Constable (GD) shall be

kept vacant, so as to take care of the interest of these two

appellants.

List these two appeals with the aforementioned appeals

on 22.7.2021.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

A. BADHARUDEEN, JUDGE MMG

08-07-2021 /True Copy/ Assistant Registrar