Kerala High Court
Amalraj Bu.U vs Union Of India on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WA NO. 924 OF 2021
AGAINST THE JUDGMENT IN WP(C).NO.23817/2020 OF THE HIGH COURT OF
KERALA, ERNAKULAM
APPELLANT/PETITIONER/RESPONDENT:
1 KAILASNATH V.A.,
AGED 27 YEARS, S/O.AYYAPPAN V.U, VADASSERIYIL HOUSE,
NELLAD P.O, ERNAKULAM 686 69.
2 ANANDU A,
AGED 24 YEARS, S/O.ANANDANATH P, SREEJAS, MAYITHARA P.O,
CHERTHALA, ALAPPUZHA-688 539
3 SACHU PRASAD,
AGED 22 YEARS, S/O. PRASAD, KANNANTECHIRA, ANANDESWARAM,
THOTTAPPALLY, P.O. ALAPPUZHA.
4 G.GOUTHAM ,
AGED 23, S/O.GOPIDAS, PADJARITHAIPARAMBU, AMAYIDA,
AMBALAPUZHA, ALAPPUZHA.
5 ANAS R,
AGED 21 YEARS, S/O. RAJU A, KILIKKAKULANGARA,
THULAMPARAMBU, NORTH MANNARASALA P.O, HARIPAD.
6 SABU B,
AGED 27 YEARS, S/O. BALACHANDRAN K, APARANALAYAM,
KOCHUNADAKIZHAKKATHIL, KUREEPUZHA, KAVANAD P.O,
KOLLAM-691 003
7 BINOY V.L,
AGED 24 YEARS, S/O. VAIKUNDAN S, ELANJIPPARA PUTHENVEEDU,
PALLICKAL , PIN-695 604.
W.A Nos.924, 938 & 1020 of 2021
2
8 SREELATHA L,
AGED 27 YEARS, D/O. PUSHPAKARAN PILLAI R,
PUSHPAVILASAM, PUNTHALATHAZHAM, KILIKOLLOOR, KOLLAM,
PIN-691 004
BY ADVS. M/S. C.UNNIKRISHNAN (KOLLAM) & JOHNSON
GOMEZ
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, NORTH
BLOCK, NEW DELHI 110 001.
2 CENTRAL RESERVE POLICE FORCE,
REPRESENTED BY ITS DIRECTOR GENERAL, BLOCK NO.1,
LODHI ROAD, NEW DELHI 11003.
3 THE DEPUTY INSPECTOR GENERAL,
CENTRAL RESERVE POLICE, GROUP CENTRE, PALLIPURAM,
THIRUVANANTHAPURAM, KERALA-695 316
4 THE REVIEW MEDICAL BOARD,
CENTRAL RESERVE POLICE FORCE CENTRE, PALLIPURAM,
THIRUVANANTHAPURAM, KERALA-695 316
5 STAFF SELECTION COMMISION
REPRESENTED BY ITS SECRETARY BLOCK NO. 12, CGO
COMPLEX LODHI ROAD, NEW DELHI-110 03
SRI.P.VIJAYAKUMAR, ASGI,
SMT.S.KRISHNA,CGC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.10.2021, ALONG WITH WA.NOS.938/2021 & 1020/2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A Nos.924, 938 & 1020 of 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WA NO. 938 OF 2021
AGAINST THE JUDGMENT IN WP(C).NO.26149/2020 OF THE HIGH COURT
OF KERALA, ERNAKULAM
APPELLANTS/PETITIONERS 1, 2 & 5
1 KANNAN V.,
AGED 26 YEARS, AGED 26 YEARS,S/O.VIJAYAN,
MANNARAKONATHU VEEDU,VATTIYOORKAVU
P.O.,THIRUVANANTHAPURAM-695 013.
2 PAUL LEVY,
AGED 20 YEARS,S/O.LEVY,VATTAKKALLEL (H),
METHOTTY,KOOVAKKANDOM P.O.,THODUPUZHA,
IDUKKI-685 588.
3 ADARSH R.KRISHNAN,
AGED 24 YEARS,S/O.RADHAKRISHNAN V.M.,
V.R.K. VILLA,ERAMATHOOR P.O.,MANNR,
ALAPPUZHA-689 622.
BY ADVS. M/S.C.UNNIKRISHNAN (KOLLAM) & JOHNSON GOMEZ
RESPONDENTS/PETITOINERS 3, 4, 6 & 7:
1 THE UNION OF INDIA,
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS,NORTH
BLOCK, NEW DELHI-110 001.
2 CENTRAL RESERVE POLICE FORCE,
REPRESENTED BY THE DIRECTOR-GENERAL,
BLOCK NO.1,LODHI ROAD,NEW DELHI-110 003.
W.A Nos.924, 938 & 1020 of 2021
4
3 THE DEPUTY INSPECTOR (GENERAL,
CENTRAL RESERVE POLICE FORCE GROUP CENTRE,
PALLIPURAM,THIRUVANANTHAPURAM,KERALA-695 316.
4 THE REVIEW MEDICAL BOARD,
CENTRAL RESERVE POLICE FORCE GROUP CENTRE,
PALLIPURAM,THIRUVANANTHAPURAM,KERALA-695 316.
5 STAFF SELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY,BLOCK NO-12,
CGO COMPLEX,LODHI ROAD,NEW DELHI-110 003.
6 SARANDEV A.V.,
AGED 25 YEARS,S/O.VASUDEVAN A.V.,ANGALATH HOUSE,
KALLERI,KANNAMBARA P.O.,PALAKKAD-678 686.
7 AYANA M.,
AGED 24 YEARS,D/O.MANIKANDAN,CHEUKKKUNNAM,
ELAVAMPADAM P.O.,PALAKKAD-678 684.
8 GEETHU P.K.,
AGED 23 YEARS,D/O.KUMARI GIRIJA K.,WARASWATHI
MANDIRAM, T.C.50/2188,NEMOM P.O.,THIRUVANANTHAPURAM-
695 020.
9 SHALI S.,
AGED 22 YEARS,D/O. SHAJI MOHAN R.,
KOLATHONI,CHALLIPARAMBU, PARUVASSERRY
P.O.,KANNAMBRA, PALAKKAD-678 686.
BY SMT.MAHESWARY G., CGC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.10.2021, ALONG WITH WA.NOS.924/2021 & 1020/2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A Nos.924, 938 & 1020 of 2021
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WA NO. 1020 OF 2021
AGAINST THE JUDGMENT IN WP(C).NO.26254/2020 OF THE HIGH COURT
OF KERALA, ERNAKULAM
APPELLANT/PETITIONER:
AMALRAJ B.U.
AGED 23 YEARS, S/O.BABURAJ, RESIDING AT 302,
THADATHARIKATHU VEEDU, KUNJILAKKAD, MITHRUMALA P.O.,
KALLARA, THIRUVANANTHAPURAM, KERALA-695 610.
BY ADVS. M/S. NAVOD PRASANNAN PATTALI &
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.
4 CENTRAL ARMED POLICE FOCES
REPRESENTED BY JOINT SECRETARY (COORDINATION AND
INTERNATIONAL COOPERATION), MINISTRY OF HOME
AFFAIRS, NORTH BLOCK, NEW DELHI - 110 001.
W.A Nos.924, 938 & 1020 of 2021
6
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 DEPUTY INSPECTOR GENERAL OF POLICE
GROUP CENTRE, CENTRAL RESERVE POLICE FORCE,
PALLIPURAM, THIRUVANANTHAPURAM - 695 316.
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 COMPOSITE HOSPITAL CRPF
GROUP CENTRE CAMPUS, DODDABALLAPUR RD., YELAHANKA,
BENGALURU, KARNATAKA - 560064.
10 REVIEW MEDICAL BOARD
REPRESENTED BY ITS PRESIDING OFFICER, CONSTABLES
(GD) EXAMINATION, 2018, GROUP CENT5RE, CENTRAL
RESERVE POLICE FORCE, PALLIPURAM, THIRUVANANTHAPURAM
- 695 316.
11 CHIEF MEDICAL OFFICER
REVIEW MEDICAL BOARD, CONSTABLES (GD) EXAMINATION,
2018, GROUP CENTRE, CENTRAL RESERVE POLICE FORCE,
PALLIPURAM, THIRUVANANTHAPURAM - 695 316.
BY SRI.K.THYAGARAJESWARAN, CGC
SRI.N.S. DAYA SINDHU SHREE HARI, CGC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.10.2021, ALONG WITH WA.NOS.924/2021 & 938/2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.A Nos.924, 938 & 1020 of 2021
7
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
=========================================
W.A No.924 of 2021
[arising out of the judgment dated 07.04.2021 in W.P(C) No.23817/2020],
W.A No.938 of 2021
[arising out of the judgment dated 07.04.2021 in W.P(C) No.26149/2020]
&
W.A No.1020 of 2021
[arising out of the judgment dated 07.04.2021 in W.P(C) No.26254/2020]
=========================================
Dated this the 29th day of October, 2021
JUDGMENT
Alexander Thomas, J.
These cases are connected, as they relate to issues of rejection of
the appellants on medical grounds in respect of selection and
appointment to the post of General Duty Constable (GD Constable) in the
Central Armed Police Forces (CAPF) services like Central Reserve Police
Force (CRPF), Border Security Force (BSF), Central Industries Security
Force (CISF), National Investigation Agency (NIA), etc. Hence, these
cases are disposed of on the basis of this common judgment. Further, the
case of the appellants is that they have successfully cleared almost all the
stages of the abovesaid post and that, they have cleared the computer
based examination, physical efficiency test and Physical Standard Test
(PST) and that, they are now disqualified solely on the ground that they
W.A Nos.924, 938 & 1020 of 2021
have not fulfilled certain medical parameters in the process of Detailed
Medical Examination (DME) and the Review Medical Examination
(RME). As per the prescribed procedure, such a candiadate disqualified
by the DME Board, is entitled to file an appeal/review petition before the
Review Medical Examination (RME) Board and for that purpose, they
have to submit the requisite memorandum of appeal/review petition,
with the prescribed Form 3 proforma, which is insisted that the candidate
preferring such appeal should necessarily get medical certification
incorporated in the Form 3 application from the qualified medical
expert/specialist, as the case may be, to the effect that, he/she has
evaluated and examined the candidate and the candidate does not suffer
from the medical defect noted, etc. It is only after obtaining such a
certification that, the candidate was preferred the appeal/review petition,
will be admitted to the RME Board, going by the terms and conditions of
the guidelines. But through the abovesaid rejection, they would have
been selected and appointed to the abovesaid services in question. It is to
be noted that the official respondents themselves have issued guidelines
for medical test for the abovesaid selection process, more particularly, for
the RME Board evaluation process. In view of such similarity of issues,
these cases are disposed of on the basis of this common judgment.
W.A Nos.924, 938 & 1020 of 2021
Heard Sri.C.Unnikrishnan, learned Advocate appearing for the
appellants in W.A Nos.924 & 938 of 2021, Sri.Navod Prasannan, learned
Advocate appearing for the appellant in W.A No.1020/2021,
Sri.P.Vijayakumar, learned Assistant Solicitor General of India
appearing in the above writ appeals, Sri.S.Krishna, learned Central
Government Counsel appearing for the official respondents in
W.A.No.924/2021, Smt.G.Maheswary, learned Central Government
Counsel appearing for the official respondents in W.A No.938/2021 and
Sri.K.Thyagarajeswaran, learned Central Government Counsel appearing
for the official respondents in W.A No. 1020/2021.
W.A No.924 of 2021
There are eight appellants in this appeal. The case of the 1 st
appellant was rejected by the Detailed Medical Examination (DME)
Board on the ground that, he does not satisfy the requisite knock knee
parameters, viz. that is on the ground that the Intermalleolar Distance
(IMD) between the legs is exceeding the permissible limit of 5cm. As per
the prescribed procedure, such a candidate disqualified by the DME
Board, is entitled to file an appeal/review petition before the Review
Medical Examination (RME) Board and for that purpose, they have to
submit the requisite memorandum of appeal/review petition, with the
W.A Nos.924, 938 & 1020 of 2021
prescribed Form 3 proforma, which is insisted that the candidate
preferring such appeal should necessarily get medical certification
incorporated in the Form 3 application from the qualified medical
expert/specialist, as the case may be, to the effect that, he/she has
evaluated and examined the candidate and the candidate does not suffer
from the medical defect noted, etc. It is only after obtaining such a
certification that, the candidate was preferred the appeal/review petition,
will be admitted to the RME Board, going by the terms and conditions of
the guidelines, as mentioned herein above. It is the specific case of the 1 st
appellant that, he had cleared the medical screening tests in the selection
process of Indian Army, as evident from Ext.P-5(c) produced in this case.
But that, he could not clear in the written examination of that process. It
is common ground that in the instant case, the 1 st appellant has produced
the requisite medical certification along with the Form 3 appeal [see page
No.107 of the paper book of this appeal], as per Ext.P-5(a) produced in
the W.P(C) relatable to this appeal, which discloses that he has been
examined by a medical expert in the speciality of Orthopaedics, who has
certified that on measurement, the candidate's Intermalleolar Distance is
less than 3cms. The 1st appellant was thereafter, evaluated by the RME
Board, who has issued the rejection order as per Ext.P-5(b) produced in
W.A Nos.924, 938 & 1020 of 2021
this case, stating that he is unfit due to failure to meet the knock knee
parameters and that the IMD is 7cms. In that regard, it is to be noted
that the official respondents themselves have issued guidelines for
medical test for the abovesaid selection process, more particularly, for
the RME Board evaluation process. The applicable guidelines and norms
regulating Review Medical Boards are contained in page 44 of the
abovesaid guidelines and clause (2) thereof, reads as follows :
"2. For the defect for which candidate has been declared unfit
should be examined thoroughly and the findings must be got
supported by proper investigation reports if applicable.
Review Medical Board may get opinion of concerned specialists
or super specialists of Govt. Medical College and Hospital in case of
any controversy. It must be kept in mind that a specialist medical
officer of concerned field has certified that the candidate is not
suffering from the disease for which he has been rejected, making the
decision of the earlier Medical Board controversial. Therefore, in
cases of rejection in review medical examination, clinical findings
should be corroborated with confirmatory tests/
investigations/opinion of specialists/super specialists of Govt.
Hospitals/Medical Colleges/Govt. approved private medical centers,
whichever and wherever applicable."
2. One of the essential conditions laid down therein, is that the
Review Medical Board may get opinion of the specialists concerned or
super specialists concerned of Government Medical Colleges & Hospitals,
in case of any controversy and that in a case, where a specialist medical
officer of the field concerned has certified that the candidate is not
suffering from the disease, for which he has been rejected, would result in
W.A Nos.924, 938 & 1020 of 2021
the earlier medical board decision contravention. Hence, in cases of
rejection in Review Medical Examination, clinical spine should
be corroborated with confirmatory test/investigation/opinion of
specialists/super specialists of Government Colleges/Hospitals/
Government approved medical private centres, etc. In the instant case,
we specifically queried the learned Central Government Counsel,
as to whether the Review Medical Board consisted of a medical expert in
the specialty of Orthopaedics, inasmuch as, the Form 3 certification at
Ext.P-5(a), has been rendered by an Orthopaedic surgeon of the
State medical/health service. The official respondents have now
fairly and candidly stated before us that, the said RME Board did not
contain Orthopaedic specialists. The impact of the abovesaid guidelines
is that the same is binding and the official respondents has to
meticulously comply with the terms and conditions of the guidelines
to ensure the rendering a fair and reasonable decision making
process and otherwise to violate the prescribed procedure, as per the
guidelines, would amount to procedural impropriety. In the instant
case, since the medical certification in terms of Form 3(c) was secured
by the 1st appellant from a Specialist Orthopaedic Surgeon, then the
abovesaid guidelines demanded that the RME Board should have
W.A Nos.924, 938 & 1020 of 2021
comprised of an Orthopaedic Surgeon which was consequence of the
absence in the instant case. This is so, because the RME Board wanted to
controvert the decision of the State Medical Expert, then he was bound to
get corroboration from specialist or super specialist, as the case may be of
Government Hospitals, Medical College Hospitals, etc. Therefore,
without getting into the merits of the controversy in any manner, we are
of the firm view that the rejection of the 1 st appellant, would require
judicial interdiction with a remit.
3. The case of the 2nd appellant was rejected by the DME Board
on the ground of Hyperhidrosis. He had secured Ext.P-6 Form 3
certification from a qualified specialist in the field of general medicine of
the State Government Medical College, Alappuzha, as evident from
Ext.P-6 [see page 110 of the paper book of this appeal]. The RME Board
has rejected the case of the 2nd appellant on the very same ground earlier
cited by the DME Board and the assessment was not done by a qualified
specialist in the field concerned, which is general medicine in this case.
Moreover, if at all, the RME Board wanted to controvert the abovesaid
expert medical opinion given by the State Medical College expert, as per
Form-3 certification, then the guidelines in question demanded that the
same should have been done only on the basis of corroboration by
W.A Nos.924, 938 & 1020 of 2021
seeking opinion of specialists or super specialists, as the case may be, as
mentioned supra. So in this case also the decision making process is
vitiated on the ground of procedural impropriety, illegality and at any
rate, the action cannot be said to be reasonable and proper exercise of
power. So, the case of the 2nd appellant also would require interference.
4. As far as the 3rd appellant is concerned, he was declared unfit
by the DME Board on the ground of Surgical case of varicos vein. He
had secured Ext.P-7 Form 3C certification from a qualified surgeon
having MS General Surgery degree, who is the specialist in the field
concerned, who has certified as per Ext.P-7 [see page 112 of the paper
book of this appeal], that the varicose vein has been surgically corrected
earlier and that there is no varicose vein as at present in the case of the
3rd appellant. However, the RME Board which did not comprise an
expert in the specialty of general surgery has rejected the case of the
3rd appellant, citing the very same ground invoked by the DME Board.
Hence, the abovesaid decision making process in the case of the
3rd appellant has also violated the guidelines in the decision making
process being vitiated as above.
5. The cases of the 4th & 5th appellants are also in a manner
identical or similar to the case of the 3 rd appellant. Exts.P-8 & P-9(a)
W.A Nos.924, 938 & 1020 of 2021
produced in this paper book of this appeal are the Form 3C certification
given by the specialist surgeon, whereas the RME Board rejected the
case, without the aid of a specialist surgeon and without corroboration by
reference to a specialist, etc., as mentioned supra. So, the cases of 4 th &
5th appellants would also require interdiction as in the case of the 3 rd
appellant.
6. The 6th appellant's case was rejected by the RME Board on the
ground of "Hypertension tachycardia" "Anal Fissure" & "knock knee"
issue. He had secured Form 3C medical certification by the doctors in
the specialty of general surgeon in the case of the first two defects and
specialist surgeon as far as the third defect of knock knee is concerned,
therein specialist physician who is qualified in general medicine has
certified that his blood pressure and arthritis are normal and the special
surgeon has certified that his knock knee measurement is less than 3cm,
which is within the permissible limit. The 6 th appellant has a specific case
that, going by the acceptable medical and scientific procedure, the IMD is
measured on the basis of wooden blocks, etc. and the same devise was
not used. We need not get into those issues sitting in judicial review, for
the simple reason that the RME Board has rejected the medical
certification of the State Medical Specialist Experts and the said RME
W.A Nos.924, 938 & 1020 of 2021
Board did not contain any of the requisite specialist concerned required
in this case and that aspect of the matter is candidly admitted by the
official respondents. To put it precisely, the RME Board did not seek the
help of a qualified physician in the field of general medicine and a
qualified Orthopaedic surgeon, etc. That apart, there is also violation of
the abovesaid guidelines quoted hereinabove, wherein it is necessary that
if the RME Board wants to controvert the opinion of the medical
specialists concerned, then they will have to refer the case to
specialist/super specialist, as the case may be, as quoted in the applicable
guidelines mentioned hereinabove. So, in the instant case also, the
decision making process is vitiated as above, which requires interference
in exercise of the powers of judicial review.
7. As far as the 7th appellant is concerned, he was declared unfit
by the DME Board on the ground of Hypertension tachycardia. Here
also, he had secured opinion of specialist expert. As a matter of fact,
Ext.P-11 produced on page 127 of this appellate paper book would show
that the said certification in Form-3 has been rendered by a qualified
doctor in the super specialty field of cardiology. The said super specialist
opinion has been overruled by the RME Board in this case and the RME
Board did not seek the help of any specialist and that aspect of the matter
W.A Nos.924, 938 & 1020 of 2021
is candidly admitted before us by the official respondents. Therefore, this
case is also similarly situated warranting necessary directions as in the
other cases.
8. The 8th appellant was declared unfit by the DME Board on the
ground of "Thyromegaly" and he had secured Ext.P-12(a) certification in
the prescribed Form-3 appeal, which has been certified by a super
specialist doctor in the field of Endocrinology, stating that the applicant
on examination and evaluation is not suffering the said medical defect
and that the opinion of the DME Board is on account of error of
judgment. In this case also, the opinion of a super specialist as per Ext.P-
12(a) has been mechanically overruled by the RME Board, without
seeking the help of any specialists/super specialist and in violation of the
guidelines as quoted hereinabove. So, this case would also require the
same treatment. Hence, the upshot of the above discussion that in the
case of the rejection of each of these eight appellants mentioned
hereinabove, the official respondents have violated the terms and
conditions of the applicable guidelines, more particularly, the one given
in pages 44 & 45 of the guidelines, which stipulates the procedure and
process of the RME Board. Hence, suffice to say, the appellants in this
case have succeeded in making out valid grounds of judicial review, so as
W.A Nos.924, 938 & 1020 of 2021
to invoke the prerogative discretionary public law remedy conferred
under Article 226 of the Constitution of India. The matter would require
serious re-consideration by the RME Board process and would warrant a
remit. Hence, the impugned decision of the RME Board, rejecting the
cases of these appellants, will stand set aside and quashed. The cases of
these appellants will stand remitted to the RME Board, for consideration
and decision afresh. The RME Board will meticulously and carefully
comply with the terms and conditions of the guidelines issued by the
official respondents, as mentioned hereinabove and more particularly,
the norms contained in pages 44 & 45 of the guidelines, which regulates
the process and procedure for RME Board. We make it clear that we
have not entered into the merits of the controversy and we have only
examined as to whether the decision making process, which led to the
impugned rejection orders, are vitiated on account of grounds of judicial
review like procedural impropriety, unreasonableness, illegality, etc.
These crucial aspects of the matter has not been reckoned in the
rendering of the impugned judgments in these W.P(C)s. Accordingly, the
impugned judgment dated 07.04.2021 in W.P(C) No.23817/2020, will
stand set aside. The RME Board and the official respondents will ensure
that the abovesaid process will be duly completed by the RME Board, in
W.A Nos.924, 938 & 1020 of 2021
strict compliance of the guidelines, so as not to give rise to any scope of
mutual complaints and without much delay, at any rate, within a period
of six weeks from the date of production of a certified copy of this
judgment.
With these observations and directions, the above W.A will stand
disposed of.
W.A.No.938 of 2021
9. There are 3 appellants in this case. The 1 st appellant was
declared unfit by the DME Board on the ground testis absent, varicose
vein, etc. In the Form 3C medical certification, the appellant has made
available a certificate issued by a qualified expert in the field of General
Surgery, having MS(General Surgery) degree and serving the State
Medical Board Health Service, wherein it is stated that 'hypoplastic
testes' has been operated and that varicose vein has been operated
earlier, and that the assessment by the DME Board is on account of error
of judgment and the candidate is medically fit, etc. Further, the 1st
appellant would place reliance on Exts.P-6 & P-6(b) certificates of the
same specialist obtained later, wherein also the details are given that
there are no serious medical defects, etc. It is the specific case of the 1 st
appellant herein that he had earlier passed the medical screening test in
W.A Nos.924, 938 & 1020 of 2021
the Indian Army selection process, and though later he could not clear
the written examination, and that Ext.P-6 (c) produced in this case is the
certification then given by the Army medical authorities. It is pointed out
that norms and guidelines in Indian Army selection is much more
rigorous than the case of CAPF selection process, etc . Be that as it may,
the heart of the matter is that the RME Board has rejected the case of the
1st appellant without seeking the aid of any specialist, and they have taken
the step of overruling the considered professional opinion of qualified
specialist in the field of General Surgery. As mentioned in the previous
appeal, it at all the RME Board was with the firm view that abovesaid
medical certification of the State Medical Expert is to be is required to be
controverted, then the abovesaid procedure of seeking reference to
expert/super specialist of Government institutions/Medical Colleges, etc
should have been resorted to, and in other words, the abovesaid cardinal
norm in the guidelines meant to regular RME Board process has been
violated.
10. The case of the 2nd appellant was rejected by the RME Board
on the post operative case of varicose. He had also obtained medical
certification along with Form 3 appeal in the prescribed proforma from a
qualified expert specialist in the field of general Surgery, which is the
W.A Nos.924, 938 & 1020 of 2021
applicable specialty in this case, certifying that the varicose vein problem
was earlier surgically corrected and he is not having now the varicose
vein problem. The abovsaid considered professional opinion of the
medical specialist has been overruled by the RME Board in this case
which need not comprise a specialist in the abovsaid field, and without
complying with the strict terms and conditions of the applicable norms
given on page nos. 45 & 46 of the guidelines of the RME Board as
mentioned hereinabove. Thereafter, this case was also rejected for
interdiction or remit.
11. The 3rd appellant was declared unfit by the DME Board out of
systolic hypertension, and overweight. He had also secured certification
by expert while submitting his Form 3 appeal which certify that his
pressure was normal and stated that he is not suffering from any medical
defects. In the instant case, the RME Board has rejected the case of the
3rd appellant citing the very same ground invoked by the DME Board and
in violation of the guidelines. Here, we have to make reference to the
details in relation to the 2nd alleged defect, which is the alleged defect of
overweight. It is common ground that the appellant was of the age 24
years, and that his body weight is 77 kg and that his height is 183 cm.
It is well known that for a person having 183 cm height, the BMI should
W.A Nos.924, 938 & 1020 of 2021
be within the body weight limit of 83 kg. Clause 'd' of para 2 given on
page 3 of the guidelines reads as follows:
" d) Measurement of physical standards viz. height, weight, and chest is the
responsibility of the Physical Standard Test Board (PST Board) for all
categories of candidates ie GOs, SOs and Ors Medical officers will not be part
of PST board both for Male & Female. candidates. Since presence of a female
is required at the time of recording of physical standard (PST), a female non
medical staff may be. associated with PST board. Recruiting medical officer
need not record to physical measurements. Recruiting medical officer will
mention physical standard in the medical examination form as recorded by
the PST board In borderline cases of overweight, BMI should also be
considered to arrive at conclusion and variation of 5Kg +/- from the
minimum/maximum limit may be accepted Similarly while measuring height
fraction of cm less that 0.5 will be ignored and 0.5 cm & more will be rounded
off to the next higher cm."
12. It is stipulated that if the borderline cases of overweight, the
BMI should also be considered to arrive at a conclusion with variation of
kilograms +/- the minimum/maximum limit is acceptable. Further, page
46 of the guidelines deals with the limits of body weight vis-a-vis height
and weight of the participant concerned. The said tabular data does not
explicitly deal with the case of a person having height 183 cm. However,
data for 182 cm and 184 cm are given and we are told by both sides, in
such cases, the figure is to be arrived on the basis of average, as the
height in this case (183 cm) is between height of 182 cm and 184 cm.
Therefore, the outer limit for 182 cm height is 76.5 kg and the outer limit
for a person having height 184 cm is 78.5 kg. The average of the two
would come to 77.5 kg. In the instant case, the appellant would point out
W.A Nos.924, 938 & 1020 of 2021
that his body weight, going by the assessment of the DME Board and the
RME Board, is 79 kg. The weight of the 3 rd appellant as recorded by the
RME Board is 79.2 kg. (See Ext.P-10 on page 106 of the paper book of
this appeal). The appellant would point out that the variance limit of +/-
5 kg vis-a-vis the upper limit of 77.5 kg is acceptable and if that be so, it
could go up to 82.5 kg. In the instant case, even going by the version of
the RME Board, his body weight is 79.2 kg (see Ext.P-10 on page 106 of
the appeal) Further that, this will be subject to the criteria that the said
weight shall not exceed the permissible BMI criteria gain, which for a
candidate having 183 cm is up to 83 kg. Since, on applying the variance
limit, it could go up to 82.5 kg and since the said figure of 82.5 kg is less
than the BMI criteria limit of 83 kg, the candidate could not have been
lawfully disqualified etc. These aspects of the matter have been dealt with
by us in a judgment rendered yesterday (28.10.2021) in the case of the
sole appellant in W.A.No.700/2021. Be that as it may, it is candidly
admitted by the official respondents before us that the RME Board did
not contain an expert, and no details are given as to whether they have
followed and applied the variance limit,etc. For all these reasons, we are
of the view that this case would also require interdiction.
13. Here also, the impugned rejection action rendered at the
W.A Nos.924, 938 & 1020 of 2021
instance of the RME Board is vitiated by impropriety, illegality and
unreasonableness, etc warranting invocation of interdiction of judicial
remedy. Hence, the impugned rejection orders based on the decision
making of the RME Board will stand quashed in these three cases.
The matter will stand remitted to the RME Board for decision afresh and
strictly in compliance of the terms and conditions of guidelines
mentioned hereinabove.
14. The abovesaid process shall be duly completed by the RME
Board and the official respondents concerned without much delay,
preferably within a period of 6 weeks from the date of production of a
certified copy of this judgment.
15. Here also the official respondents will ensure that 3 vacancies
in the post of General Duty Constables in the CAPF are kept vacant to
consider and protect the claims of the three appellants herein.
The abovesaid aspects have not been duly considered in the rendering of
the impugned judgment in this WP(C). Hence, the impugned judgment
dated 7.4.2021 in WP(C) No. 26149/2020 will stand set aside.
With these observations and directions, the above Writ Appeal will
stand disposed of.
W.A Nos.924, 938 & 1020 of 2021
W.A.No.1020 of 2021
16. The case of the sole appellant in this case for selection in the
abovesaid post, was earlier rejected by the DME Board on the ground
that he suffers from 4 defects. We are not concerned with the first three
defect. Admittedly, the first three defects were later waived and overruled
by the official respondents themselves. The defect noted in Ext.P-1 and
which is relevant in our present case is that he has 'fainting (syncope)' as
found out during DME process (See Ext.P-1 on page 68 of the paper book
of this writ appeal). He had submitted Form 3C appeal along with
medical certification at Ext.P-2 given by a qualified expert in the specialty
of General Medicine having MD(General Medicine) serving the Kerala
Health Services certifying that the clinically cardio vascular system and
blood pressure - normal and next observations are not fully legible, and
it broadly says and indicates that there is no hyper tension, etc. (See
Ext.P-2 on page 69 of the paper book of this writ appeal). Further, it is
certified therein that the earlier defect noted was on an error and the
candidate is found medically fit, etc. The RME Board has rejected the
case of this appellant (See Ext.P-4 on page 71 of the paper book of this
writ appeal) stating that he is unfit due to 'Mild Mitral Valve Prolapse
Trivial MP TR'. It is admitted before us by the official respondents that
W.A Nos.924, 938 & 1020 of 2021
the Ext.P-4 assessment by the RME Board has not been done by a
specialist in the field of General Medicine or a super specialist in the field
of cardiology. Since, Ext.P-2 certification is given in favour of the
appellant by a qualified general physician in the broad specialty of
General Medicine, it is not as if the RME Board can never controvert it,
but if have to consider to controvert it, then the abovesaid applicable
guidelines will be binding on them which requires reference to the
specialists/super specialist of government institution/medical
colleges/private medical centres, etc. as the case may be, as mentioned in
the norms given on page 44 of the guidelines mentioned supra. In the
instant case, the RME Board has not referred the matter to the Super
Specialist in Cardiology of Medical College/Govt. Medical Institutions,
etc as per the above guidelines.
17. We say so as para 2 of norms on page 44 of the guidelines
which deals with the RME Board process stipulates that the process of
controversion can be invoked by referring to specialist/super specialist,
as the case may be of Medical Colleges, etc. Therefore, the procedure
would make it clear that in a case where controversion process can be
effectively done, on the basis of a reference to the specialist/super
specialist of Medical Colleges, etc then that may suffice. Moreover, apart
W.A Nos.924, 938 & 1020 of 2021
from these normative aspects, it also be borne in mind that the aspect
would require serious reconsideration taking note of the aspects borne
out from Exts.P-1, P-2 and P-4. Therefore, fairness and reasonableness
would require that the matter has to be resolved by a process of reference
to a super specialist in the field of cardiology. Since, the same has not
been done, we are of the considered view that the the norms of the
guidelines are applicable in the case as well.
18. We make it clear that we have not entered into the merits of
the controversy in any manner. We have only examined the nature of
decision making process, as to whether the same is in breach of the well
known grounds of public law remedy of judicial review, like the grounds
of procedural impropriety, illegality, unreasonableness, unfairness, etc.
Accordingly, this case would also require interdiction. We make it clear
that all what we have stated is that the procedure has to be complied with
strictly so that fair and expert decision is taken by the medical experts in
the fields concerned, so that the rights and interest of both sides are duly
protected. In that view of the matter it is ordered that the impugned
rejection order based on the RME Board decision will stand set aside and
quashed. The matter will stand remitted to the RME Board for decision
afresh and strictly in compliance of the terms and conditions of
W.A Nos.924, 938 & 1020 of 2021
guidelines mentioned hereinabove. The abovesaid process shall be duly
completed by the RME Board and the official respondents concerned
without much delay, preferably within a period of 6 weeks from the date
of production of a certified copy of this judgment.
19. The aspects mentioned hereinabove have not been duly
considered in the rendering of the impugned judgment in this WP(C).
Hence, the impugned judgment dated 7.4.2021 in WP(C) No.
26254/2020 will stand set aside.
With these observations and directions, the above Writ Appeal will
stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
VIJU ABRAHAM, JUDGE
vgd, MMG
W.A Nos.924, 938 & 1020 of 2021
APPENDIX OF WA.NO.1020/2021
PETITIONER'S ANNEXURES:
ANNEXURE A TRUE COPY OF THE ECHOCARDIOGRAPHY REPORT
DATED 07/07/2021 ALONG WITH PATIENTS
DEMOGRAPHICS OF THE APPELLANT.
ANNEXURE B TRUE COPY OF THE RELEVANT PAGES OF THE
GUIDELINES FOR RECRUITMENT MEDICAL
EXAMINATION IN CENTRAL ARMED POLICE FORCES
AND ASSAM RIFLES.
