$~3 & 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30.11.2024
(3) + W.P.(C) 14729/2024, CM APPL. 61857/2024 & 61859/2024
STAFF SELECTION COMMISSION & ORS. .....Petitioners
Through: Mr. Nune Balraj, SPC with Mr.
Harshit Goel & Ms. Meghna
Rai, Advs.
versus
ARUN .....Respondent
Through: Ms. Esha Mazumdar, Mr. Setu
Niket, Ms. Unni Maya & Mr.
Devansh Khatter, Advs.
(9) + W.P.(C) 15795/2024 & CM APPL.66303/2024
STAFF SELECTION COMMISSION AND ORS .....Petitioners
Through: Adv. (appearance not given)
versus
NITISH KUMAR .....Respondent
Through: Ms. Esha Mazumdar, Mr. Setu
Niket, Ms. Unni Maya & Mr.
Devansh Khatter, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J. (Oral)
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By:NEELAM
Signing Date:10.12.2024
15:46:43
W.P.(C) 14729/2024, CM APPL. 61857/2024 & 61859/2024
1. This petition has been filed by the petitioners challenging the
Order dated 22.03.2024 passed by the learned Central Administrative
Tribunal, Principal Bench, New Delhi (hereinafter referred to as the
learned “Tribunal”) in Original Application (in short, “OA”)
No.776/2024 titled Arun v. Staff Selection Commission & Ors.,
allowing the OA filed by the respondent herein and directing the
petitioners herein to, within a period of six weeks from the date of
receipt of the certified copy of the said order, constitute a fresh
Medical Board for examining the respondent herein. It was also
directed that the said Medical Board should include three
Ophthalmologists and in the event that the respondent herein is
declared medically fit and subject to the conditions of his meeting
other criteria, offer him appointment to the post of Constable in the
Delhi Police. The said order was modified by the learned Tribunal
vide its order dated 08.04.2024 by substituting the word
in the respective fiel
“ophthalmologists” with “specialists d” in the
final direction.
2. The facts giving rise to the present petition may be summarised
as under:
a. The petitioners advertised 7547 posts of Constable (Executive)
Male and Female in Delhi Police vide notification dated
01.09.2023, by way of direct recruitment. The respondent
applied for the said post and underwent the Computer Based
Examination and the Physical Endurance and Measurement
Test (in
short, “PE&MT”). Thereafter, the respondent was
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By:NEELAM
Signing Date:10.12.2024
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subjected to an examination by a Detailed Medical Examination
Board B , which declared the respondent unfit
(in short, “DME ”)
for appointment to the post of Constable (Executive) on the
ground of presence of Haemorrhoids vide its report dated
22.01.2024.
b. The respondent applied for an examination by the Review
Medical Board B which was conducted on
(in short, “RM ”),
27.01.2024, and again declared the respondent unfit for
appointment with the remark of presence of Haemorrhoids as
well as Anal Fissure. The respondent claims to have had
himself examined at the Dr. Baba Saheb Ambedkar Hospital (in
), Rohini on 03.02.2024, and in the said
short, “DBSA Hospital”
medical report, it is mentioned that he had a healed fissure with
no active bleeding and no anal spasm.
c. Armed with the said report, the respondent approached the
learned Tribunal seeking relief of appointment to the post of
Constable (Executive) in the Delhi Police.
d. The Original Application, as noted hereinabove, has been
allowed by the learned Tribunal, directing the petitioners herein
to constitute a fresh medical board for examining the
respondent.
3. The learned counsel for the petitioners submits that the opinion
of the DMEB and the RMB could not have been interfered with by the
learned Tribunal as they were based on the reports of experts. He
submits that even the report which has been produced by the
respondent, shows that the anal fissure with which he was found
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By:NEELAM
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suffering from had healed. He submits that the purpose of Review
is not to give time to the
Medical Examination (in short, “RME”)
candidate to cure himself/ herself of the ailment that has been found in
the DME but to seek that
Detailed Medical Examination (in short, “ ”)
no error has crept in the examination by the DMEB. He submits that
in the present case, it was not the case of the respondent that there was
any error in the opinion expressed by the DMEB or the RMB and
therefore, the learned Tribunal has erred in interfering with these
opinions and directing the petitioners to conduct a re-medical
examination of the respondent. In support, he places reliance on the
Judgment of this Court in Staff Selection Commission & Ors. v.
Aman Singh, 2024 SCC OnLine Del 7600.
4. On the other hand, the learned counsel for the respondent
submits that the RMB, before giving its final opinion on the fitness of
the respondent for being appointed to the post of Constable
(Executive), had referred the respondent to DBSA Hospital for
surgical opinion. The specialist found that the respondent was
suffering from a post midline fissure, however, had no bleeding. The
doctor merely advised high fibre diet, plenty of liquids, and one
medicine for 7 days to the respondent. The medical examination was
conducted on 27.01.2024. Without granting sufficient time to the
respondent to heal, the RMB, on the same day, declared the
respondent unfit on grounds of the presence of an anal fissure, without
even adverting to the fact that the specialist had merely prescribed one
medicine to the respondent and that too only for a period of 7 days.
5. The learned counsel for the respondent, by placing reliance on
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By:NEELAM
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the
“Establishment and Administration for Central Government
, which contains the guidelines for the medical examination
Officers”
for recruitment, submits that an application for an appeal medical
Board can be made by a candidate within one month from the date of
issuance of the communication of unfitness by the DMEB. She
submits that in the present case, the RMB should have at least waited
for some time and granted time to the respondent to heal before
declaring him unfit for the post. In support of her submissions, she
places reliance on the Order dated 29.11.2017 of this Court in WP(C)
No. 8690/2017 titled Ashwani v. Union of India,
NC:2017:DHC:7339-DB.
6. She submits that in the present case, the DMEB or the RMB
have also not given any opinion on whether the presence of anal
fissure, which is curable in nature, would have in any manner
hampered or affected the discharge of duties by the respondent, if
appointed. She submits that in absence of this finding, the opinion of
the DMEB and the RMB could not be accepted. She places reliance on
the Judgment of this Court in Staff Selection Commission and Ors. v.
Ravi, 2024 SCC OnLine Del 8048 in support of her submissions.
7. Placing reliance on the Judgment of this Court in Aman Singh
(supra), she submits that if a disease is curable, the medical board also
has to form an opinion if the ailment by itself can be treated as a
disqualification for the candidate. In the absence of any clear
indication in the medical guidelines to this effect, the medical board
should have granted sufficient time to the respondent for the disease to
have healed.
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Digitally Signed
By:NEELAM
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8. We have considered the submissions made by the learned
counsels for the parties.
9. This Court in Aman Singh (supra), on a detailed scrutiny of the
precedents on this issue, has summarised the legal principles
applicable to the cases of rejection of a candidature of a person due to
medical ailments as under:
considered opinion, the
“10.38 In our
following principles would apply:
(i) The principles that apply in the case of
recruitment to disciplined Forces, involved
with safety and security, internal and external,
such as the Armed and Paramilitary Forces,
or the Police, are distinct and different from
those which apply to normal civilian
recruitment. The standards of fitness, and the
rigour of the examination to be conducted, are
undoubtedly higher and stricter.
(ii) There is no absolute proscription against
judicial review of, or of judicial interference
with, decisions of Medical Boards or Review
Medical Boards. In appropriate cases, the
Court can interfere.
(iii) The general principle is, however,
undoubtedly one of circumspection. The Court
is to remain mindful of the fact that it is not
peopled either with persons having intricate
medical knowledge, or were aware of the
needs of the Force to which the concerned
candidate seeks entry. There is an irrebuttable
presumption that judges are not medical men
or persons conversant with the intricacies of
medicine, therapeutics or medical conditions.
They must, therefore, defer to the decisions of
the authorities in that regard, specifically of
the Medical Boards which may have assessed
the candidate. The function of the Court can
only, therefore, be to examine whether the
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By:NEELAM
Signing Date:10.12.2024
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manner in which the candidate was assessed
by the Medical Boards, and the conclusion
which the Medical Boards have arrived,
inspires confidence, or transgresses any
established norm of law, procedure or fair
play. If it does not, the Court cannot itself
examine the material on record to come to a
conclusion as to whether the candidate does,
or does not, suffer from the concerned ailment,
as that would amount to sitting in appeal over
the decision of the Medical Boards, which is
not permissible in law.
(iv) The situations in which a Court can
legitimately interfere with the final outcome of
the examination of the candidate by the
Medical Board or the Review Medical Board
are limited, but well-defined. Some of these
may be enumerated as under:
(a) A breach of the prescribed procedure that
is required to be followed during examination
constitutes a legitimate ground for
interference. If the examination of the
candidate has not taken place in the manner in
which the applicable Guidelines or prescribed
procedure requires it to be undertaken, the
examination, and its results, would ipso facto
stand vitiated.79
(b) If there is a notable discrepancy between
the findings of the DME and the RME, or the
Appellate Medical Board, interference may be
justified. In this, the Court has to be conscious
of what constitutes a “discrepancy”. A
situation in which, for example, the DME finds
the candidate to be suffering from three
medical conditions, whereas the RME, or the
Appellate Medical Board, finds the candidate
to be suffering only from one of the said three
conditions, would not constitute a discrepancy,
so long as the candidate is disqualified
because of the presence of the condition
concurrently found by the DME and the RME
or the Appellate Medical Board. This is
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By:NEELAM
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because, insofar as the existence of the said
condition is concerned, there is concurrence
and uniformity of opinion between the DME
and the RME, or the Appellate Medical Board.
In such a circumstance, the Court would
ordinarily accept that the candidate suffered
from the said condition. Thereafter, as the
issue of whether the said condition is sufficient
to justify exclusion of the candidate from the
Force is not an aspect which would concern
the Court, the candidate's petition would have
to be rejected.
(c) If the condition is one which requires a
specialist opinion, and there is no specialist on
the Boards which have examined the
candidate, a case for interference is made out.
In this, however, the Court must be satisfied
that the condition is one which requires
examination by a specialist. One may
differentiate, for example, the existence of a
haemorrhoid or a skin lesion which is
apparent to any doctor who sees the
candidate, with an internal orthopaedic
deformity, which may require radiographic
examination and analysis, or an
ophthalmological impairment. Where the
existence of a medical condition which
ordinarily would require a specialist for
assessment is certified only by Medical Boards
which do not include any such specialist, the
Court would be justified in directing a fresh
examination of the candidate by a specialist,
or a Board which includes a specialist. This
would be all the more so if the candidate has
himself contacted a specialist who has opined
in his favour.
(d) Where the Medical Board, be it the DME
or the RME or the Appellate Medical Board,
itself refers the candidate to a specialist or to
another hospital or doctor for opinion, even if
the said opinion is not binding, the Medical
Board is to provide reasons for disregarding
the opinion and holding contrary to it. If,
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Digitally Signed
By:NEELAM
Signing Date:10.12.2024
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therefore, on the aspect of whether the
candidate does, or does not, suffer from a
particular ailment, the respondents themselves
refer the candidate to another doctor or
hospital, and the opinion of the said doctor or
hospital is in the candidate's favour, then, if
the Medical Board, without providing any
reasons for not accepting the verdict of the
said doctor or hospital, nonetheless
disqualifies the candidate, a case for
interference is made out.
(e) Similarly, if the Medical Board requisitions
specialist investigations such as radiographic
or ultrasonological tests, the results of the said
tests cannot be ignored by the Medical Board.
If it does so, a case for interference is made
out.
(f) If there are applicable Guidelines, Rules or
Regulations governing the manner in which
Medical Examination of the candidate is
required to be conducted, then, if the DME or
the RME breaches the stipulated protocol, a
clear case for interference is made out.
(v) Opinions of private, or even government,
hospitals, obtained by the concerned
candidate, cannot constitute a legitimate basis
for referring the case for re-examination. At
the same time, if the condition is such as
require a specialist's view, and the Medical
Board and Review Medical Board do not
include such specialists, then the Court may be
justified in directing the candidate to be re-
examined by a specialist or by a Medical
Board which includes a specialist. In passing
such a direction, the Court may legitimately
place reliance on the opinion of such a
specialist, even if privately obtained by the
candidate. It is reiterated, however, that, if the
Medical Board or the Review Medical Board
consists of doctors who are sufficiently
equipped and qualified to pronounce on the
candidate's condition, then an outside medical
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Digitally Signed
By:NEELAM
Signing Date:10.12.2024
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opinion obtained by the candidate of his own
volition, even if favourable to him and
contrary to the findings of the DME or the
RME, would not justify referring the candidate
for a fresh medical examination.
(vi) The aspect of “curability” assumes
significance in many cases. Certain medical
conditions may be curable. The Court has to
be cautious in dealing with such cases. If the
condition is itself specified, in the applicable
Rules or Guidelines, as one which, by its very
existence, renders the candidate unfit, the
Court may discredit the aspect of curability. If
there is no such stipulation, and the condition
is curable with treatment, then, depending on
the facts of the case, the Court may opine that
the Review Medical Board ought to have given
the candidate a chance to have his condition
treated and cured. That cannot, however, be
undertaken by the Court of its own volition, as
a Court cannot hazard a medical opinion
regarding curability, or the advisability of
allowing the candidate a chance to cure the
ailment. Such a decision can be taken only if
there is authoritative medical opinion, from a
source to which the respondents themselves
have sought opinion or referred the candidate,
that the condition is curable with treatment. In
such a case, if there is no binding time frame
within which the Review Medical Board is to
pronounce its decision on the candidate's
fitness, the Court may, in a given case, direct a
fresh examination of the candidate after she,
or he, has been afforded an opportunity to
remedy her, or his, condition. It has to be
remembered that the provision for a Review
Medical Board is not envisaged as a chance
for unfit candidates to make themselves fit, but
only to verify the correctness of the decision of
the initial Medical Board which assessed the
candidate.
(vii) The extent of judicial review has, at all
times, to be restricted to the medical
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By:NEELAM
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examination of the candidate concerned. The
Court is completely proscribed even from
observing, much less opining, that the medical
disability from which the candidate may be
suffering is not such as would interfere with
the discharge, by her, or him, of her, or his,
duties as a member of the concerned Force.
The suitability of the candidates to function as
a member of the Force, given the medical
condition from which the candidate suffers,
has to be entirely left to the members of the
Force to assess the candidate, as they alone
are aware of the nature of the work that the
candidate, if appointed, would have to
undertake, and the capacity of the candidates
to undertake the said work. In other words,
once the Court finds that the decision that the
candidate concerned suffers from a particular
ailment does not merit judicial interference,
the matter must rest there. The Court cannot
proceed one step further and examine whether
the ailment is such as would render the
candidate unfit for appointment as a member
of the concerned Force.”
10. This Court, therefore, inter alia held that while the extent of
judicial review in case of a medical examination of a candidate is
restricted and the Court is completely proscribed even from observing,
much less opining, that the medical disability from which the
candidate may be suffering is not such that would interfere with the
discharge of duties by such candidates, at the same time, there is no
absolute bar against judicial review of or of judicial interference with
the decisions of the medical boards or review medical boards. A
breach of prescribed procedure or where there is a notable discrepancy
between the findings of the DMEB and the RMB or where the cases
are such which would require a specialist opinion, which was not
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taken or whose opinion was not given due weightage by the DMEB or
the RMB, the Courts would be entitled to interfere even with the
concurrent findings of the DMEB and the RMB. We must say that
these cases though restricted are only illustrative in nature and we are
not attempting to lay down an exhaustive list of cases where the
Courts may interfere with the opinion of DMEB or the RMB.
11. In Aman Singh (supra), the Court further observed that the
aspect of curability may assume significance in many cases, since
certain medical conditions may be curable. However, if the applicable
rules or guidelines themselves provide that the candidate would be
declared unfit for appointment in the presence of such disease though
curable in nature, the Courts will not intervene. A decision on whether
a curable defect would also amount to a disqualification for
appointment has to be left to the opinion of the experts and to the
employer.
12. In Staff Selection Commission and Ors. v. Virendra Singh
Rathore, 2024 SCC OnLine Del 7985, this Court was confronted with
a factual case where the candidate had got himself operated between
the stage of the DME and the RME for the chronic tonsillitis. The
RMB rejected the candidate, as the wound had not healed properly
and slough was present. This Court interfered with such opinion
holding that the RMB had failed to consider that there was no
subsisting ailment and that the RMB had been conducted on the very
next day, not giving sufficient time to the candidate for the wound of
the candidate to have healed.
13. In Ashwani (supra) as well, this Court held that the employer
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By:NEELAM
Signing Date:10.12.2024
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ought to have waited for a reasonable time before conducting a review
of the medical conditions of the candidate, especially when their own
guidelines provided that such review medical examination could be
held within 21 days of the candidate being declared unfit by the
DMEB Board.
14. In Ravi (supra), this Court emphasised that mere presence of a
disability may not be sufficient to disqualify a candidate; the medical
board also has to opine that such a disability is likely to interfere with
the efficient performance of the duties by such candidates.
15. Applying the above principles to the facts of the present case, it
needs to be emphasised that at the stage of the RMB, the respondent
was referred to a specialist at the DBSA Hospital, where the specialist
merely prescribed one medicine for 7 days along with diet. Instead of
giving sufficient time to the respondent to heal, the RMB on the very
same day, declared the respondent unfit for appointment for the
presence of anal fissure. It did not give any opinion on whether the
presence of anal fissure, for which the treatment had been advised by a
specialist, would in any manner hamper the performance of duties by
the respondent if appointed, and/or on whether it should be treated as
absolute ground for rejecting the candidature of the respondent by the
very presence of such ailment. It is also the case of the respondent that
within a week of the said report, the respondent got himself re-
examined at the very same hospital, which found the anal fissure had
healed.
16. In matters of public employment, the opportunity for the
candidates is very scarce. There is still a huge persisting desire to join
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public service. Therefore, before declaring a candidate as disqualified
on medical grounds, we are of the opinion that cogent material should
be present before the DMEB and the RMB, and an opinion should be
formed/recorded that the disability found is likely to interfere with the
efficient discharge of duties by such candidates in case he/she is
appointed to the post or such an ailment must be mentioned
specifically as a disqualification in the medical guidelines or rules of
appointment.
17. In the present case, the learned Tribunal has granted one more
opportunity to the respondent to prove to the petitioners that he is fit
for employment. Ultimate decision vests with the Medical Board
which the petitioners have been directed to appoint. We have no
reason to doubt that the Medical Board would look into the guidelines,
the requirements of the employment, and other relevant factors before
taking an informed decision on whether the respondent should be
allowed to continue with the recruitment process or be disqualified at
this stage itself.
18. In view of above, we do not find any merit in the present
petition and the same, along with the pending applications, is,
accordingly, dismissed.
W.P. (C) 15795/2024 & CM APPL.66303/2024
19. Similarly, in W.P. (C) 15795/2024, the respondent was declared
unfit for appointment due to External and Internal Hemorrhoids,
however, the RME, though took note of the opinion of the surgical
specialist that the respondent needs treatment for Hemorrhoids before
medical fitness, did not give any opportunity to the respondent for the
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By:NEELAM
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same and instead carried the REM and declared the respondent unfit
for appointment. In such peculiar facts, no fault can be found in the
order passed by the learned Tribunal in directing a re-medical
examination of the respondent.
20. We, therefore, find no merit in this petition. The same is
accordingly dismissed. The pending application also stands disposed
of.
NAVIN CHAWLA, J
SHALINDER KAUR, J
NOVEMBER 30, 2024/ab/sk/as
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Digitally Signed
By:NEELAM
Signing Date:10.12.2024
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