Madras High Court
K.M.Manojkumar vs The Secretary on 1 April, 2021
W.P.(MD) No.16282 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD) No.16282 of 2020
and W.M.P.(MD).No.13616 of 2020
K.M.Manojkumar ... Petitioner
Vs
1.The Secretary
Staff Selection Commission
Block No.12, CGO Compled Lodhi Road,
New Delhi.
2.The Deputy Secretary
Staff Selection Commission,
Southern Region
2nd floor E.V.K.Sampath Building,
Chennai - 600 006.
3.The Directorate General CRPF
(Recruitment Branch)
Eastern Block 07
Level Level 04, Sector 01
R.K.Puram,
New Delhi - 110066
4.The Review Medical Examination board
(RME Board) ITPB Sivagangai RTC
Sivagangai, ITBPF, Vill-Illupaikudi,
PO-Podamathur, Dist. Sivagangai,
Tamil Nadu - 630 561. ... Respondents
1/10
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W.P.(MD) No.16282 of 2020
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records of the 4th respondent in his proceedings in Form NO.4 of
CONSTABLE (GD) EXAM 2018 REVIEW MEDICAL
EXAMINATION REPORT dated 03.10.2020, quash the same and direct
the respondents to select and appoint the petitioner as Constable in
CAPFs.
For Petitioner : Mr.V.Panneer Selvam
For Respondents : Mrs.L.Victoria Gowri
Additional Solicitor General of India
ORDER
The petitioner's candidature in the recruitment process for the post
of Constable (GD) in Central Armed Police Forces (CAPFs), NIA, SSF
and Rifleman (GD) in Assam Rifles Examination, 2018, pursuant to the
notification, dated 03.10.2020, came to be rejected by the Medical Board
on the ground that there is a post surgical scar on on right fore-arm and
shoulder. The report is based on the Dermatologist opinion, dated
01.10.2020 of the Review Medical Examination, which states as
follows :
"Post surgical Scar on Right Forearm and Shoulder;
healed Scar without complication "
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W.P.(MD) No.16282 of 2020
2.The guidelines for the recruitment process for the post of
Constable (GD) in Central Armed Police Forces (CAPFs), NIA, SSF and
Rifleman (GD) in Assam Rifles Examination, 2018, in Clause XI (3)
permits tattoos with a size less than 1/4th on particular part. The
petitioner had removed his tattoos and the opinion under RME, was that
there is a Keloid formation, after removal.
3.The guidelines or the notification does not prohibit such Keloid
formation, which is claimed to occur Post surgery of removal of the
tattoos. As such, the same cannot be a reason for dis-qualification.
Moreover, the Hon'ble Division Bench of Bombay High Court, in the
case of Hardik Rameshkumar Vaghela vs Union Of India Thru
Secretary, and others passed in W.P.No.1991 of 2019, has held that
disqualification on the basis of a candidate bearing a tattoos or removal
of the same, cannot be sustained.
4.The relevant portion of the order is thus
“8. A bare perusal of the record would reveal that the
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W.P.(MD) No.16282 of 2020
Petitioner has successfully cleared all the tests including
physical fitness and trade proficiency. The opinion of the
Medical Board that the Petitioner had a 'knock knee', has
not been approved by the Review Board and it came to
the conclusion that the Petitioner does not suffer from
knock knee. The certificate issued by the Review Medical
Board dated 24th July, 2017 records that though the
Petitioner is undergoing laser treatment, yet the tattoo on
right arm has not disappeared completely. It implies that
the Petitioner has been making earnest efforts to get the
tattoo removed by undergoing the prevalent treatment.
From the nature of the employment i.e. Constable/Driver,
which the Petitioner seeks, it does not appear that the
existence of tattoo on the right arm would constitute a
hindrance in effectively performing the duties of the said
post. We cannot loose sight of the fact that in tradition
bound societies, tattoos are inscribed on the body, often
during early childhood, under the belief that it would
protect the child from evil influence or bring luck. Such a
traditional practice, ordinarily should not come in the
way of 928-WP1991-19.DOC public employment unless
there is an overwhelming justification for the same, in the
context of the duties of the particular post. Nor it appears
to be an irreversible medical condition.
9. Even otherwise, the judgment of this Court in the case
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W.P.(MD) No.16282 of 2020
of Shridhar Mahadeo Pakhare (supra) covers the
controversy sought to be raised on behalf of the
Respondents. In the said judgment, the Division Bench of
this Court, has noted that for the post of Sub-Inspector in
CISF, the advertisement issued provides certain
relaxation as regards the tattoo mark on the body of the
aspirants. The rationale of the said relaxation is the
religious sentiments of the countrymen. The Division
Bench, thus, found that it would not be permissible for
the employer to treat the class of the employees
differently and apply different parameters. The
observations of this Court in paragraph 5 are material
and seal the issue.
"In our opinion, it would not be permissible for the
employer to treat the class ofemployees differently
and apply different parameters. As has been
recorded above, the religious sentiments of the
individual need to be respected. For the reasons
recorded above, we are of the opinion that the claim
of the petitioner for employment need to be
considered. The petitioner is otherwise found fit by
the Medical Board, except on account of carving out
the tattoo which has also been removed admittedly
to the extent of 90%. We are of the opinion that the
respondents need to be directed to consider the
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W.P.(MD) No.16282 of 2020
claim of the petitioner for employment since he has
been found otherwise fit. The Writ Petition is thus
allowed. The respondents are directed to consider
the claim of the petitioner for employment to the
post of 'constable/driver' in C.I.S.F. and the medical
928-WP1991-19.DOC opinion holding the
petitioner ineligible on account of tattoo mark shall
not be construed as an impediment for issuing an
order of appointment in favour of the petitioner.
Rule is accordingly made absolute. There shall be
no order as to costs."
10. Having regard to the facts of the case and the ground
for declaring the Petitioner, 'medically unfit', and in the
light of the aforesaid observations, we are of the view
that the action of the Respondents of declaring the
Petitioner 'medically unfit' for having a tattoo on the
right arm, is unsustainable. We are, therefore, inclined to
direct that the Petitioner's candidature shall not be
rejected on the ground that the Petitioner has a tattoo on
the right arm. We are, thus, inclined to direct Respondent
nos.1 and 2 to consider the case of the Petitioner for
appointment to the post of Constable/Driver. The Writ
Petition, thus, stands allowed.
11. Rule is, therefore, made absolute in terms of prayer
Clauses (b) and (c). In the circumstances, there shall be
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W.P.(MD) No.16282 of 2020
no order as to costs.
5.The aforesaid observation of the Hon'ble Division Bench of
Bombay Court is also in favour of the petitioner herein. As such,
disqualification of the petitioner's candidature by the respondents cannot
be sustained.
6.Moreover, formation of keloid, is a condition of healing of skin
and is not a permanent deformity. In other words, its a remedial defect.
The Hon'ble Supreme Court in the case of Dharmvir Singh Vs. State of
Uttar Pradesh and another passed in W.P.(Civil) No.444 of 2019 dated
19.07.2019, had taken into consideration of remedial defects and
subjected the candidate therein for re-medical defects and subjected the
candidate therein for re-medical examination. Even on this ground, the
petitioner herein would be entitled to succeed.
7.Accordingly, the impugned proceedings in Form No.4 of
Constable (GD) Exam 2018 Review Medical Examination Report, dated
03.10.2020, is quashed. Consequently, the respondents are directed to
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W.P.(MD) No.16282 of 2020
subject the petitioner herein to further selection process without
reference to the impugned disqualification of the Review Medical
Examination, which has been quashed.
8.This Writ Petition stands allowed accordingly. No costs.
Consequently, connected miscellaneous petition is closed.
01.04.2021
Index : Yes / No
Internet : Yes / No
TM/RM
NOTE:
In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Secretary
Staff Selection Commission
Block No.12, CGO Compled Lodhi Road,
New Delhi.
2.The Deputy Secretary
Staff Selection Commission,
Southern Region
2nd floor E.V.K.Sampath Building,
Chennai - 600 006.
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W.P.(MD) No.16282 of 2020
3.The Directorate General CRPF
(Recruitment Branch)
Eastern Block 07
Level Level 04, Sector 01
R.K.Puram,
New Delhi - 110066
4.The Review Medical Examination board
(RME Board) ITPB Sivagangai RTC
Sivagangai, ITBPF, Vill-Illupaikudi,
PO-Podamathur, Dist. Sivagangai,
Tamil Nadu - 630 561.
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W.P.(MD) No.16282 of 2020
M.S.RAMESH, J.
TM/RM
Order made in
W.P.(MD) No.16282 of 2020
01.04.2021
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