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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30.11.2024
+ W.P.(C) 14749/2024 & CM APPL. 61948/2024
STAFF SELECTION COMMISSIONER & ORS.
.....Petitioners
Through: Mr.Farman Ali, SPC with
Ms.Laavanya Kaushik, GP,
Ms.Usha Jamnal, Mr.Krishan
Kumar, Advs.
versus
NEELAM RANI & ANR. .....Respondents
Through: Ms.Esha Mazumdar, Mr.Setu
Niket, Ms.Unni Maya S.,
Mr.Devansh Khatter, Advs. for
R-1
Mr.Kanav Vir Singh, SPC for
R-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J. (Oral)
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,
‘Tribunal’) in Original Application (in short, ‘OA’) No.441/2024
titled Neelam Rani v. Staff Selection Commission & Ors., whereby
the said petition filed by the respondent no.1 herein was allowed and
the petitioners herein were directed to constitute a fresh medical
board, which must include a specialist, within a period of six weeks
from the date of receipt of the certified copy of the said Impugned
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Order, for examining the respondent no.1 herein. It was also directed
that in the event the respondent no.1 herein is declared medically fit,
then, subject to meeting other criteria, the respondent no.1 herein shall
be appointed to the post of Constable (Executive) Female in the Delhi
Police.
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 the Delhi Police vide
notification/advertisement dated 01.09.2023. The respondent
no.1 applied for the said post and underwent the Computer
Based Examination (CBE) and the Physical Endurance and
Measurement Test (PE&MT). Thereafter, the respondent no.1
was subjected to an examination by a Detailed Medical
Examination (in short, “DME”) Board, which vide report dated
22.01.2024 declared the respondent no.1 unfit for appointment
to the post of Constable (Executive), by observing as under:
b. Thereafter, the respondent no.1 applied for an examination by
the Review Medical Examination (in short, ‘RME’) Board,
which was conducted on 28.01.2024. The RMB again declared
the respondent no.1 unfit for appointment on the ground of
“B/L renal calculi” and “hematuria”.
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c. The respondent no.1 claims to have got herself examined at the
Maharishi Valmiki Hospital, where no malfunction in the
kidney was found. The respondent no.1 then got herself
examined at Dr. Mishra's X-Ray & Ultrasound Clinic, where it
was reported that “Both kidneys are normal in shape, size,
outline and position. No hydronephrosis or calculus is seen on
either side.”
d. Armed with these reports, the respondent no.1 approached the
learned Tribunal seeking the relief of appointment to the post of
Constable (Executive) Female in the Delhi Police.
e. The said petition, as noted hereinabove, has been allowed by the
learned Tribunal directing the petitioners herein to constitute a
fresh medical board for examining the respondent no.1.
3. The learned counsel for the petitioners submits that in the
present case, the Review Medical Board had based its opinion on the
Clinical Study Reports of the respondent no.1, which clearly shows
the presence of stones in the kidneys and also the presence of blood in
her urine. She submits that these reports could not have been brushed
aside by the learned Tribunal based on some subsequent reports
produced by the respondent no.1.
4. On the other hand, the learned counsel for the respondent no.1
submits that there is an inconsistency between the report of the DME
Board and the RME Board; the DME Board only reported presence of
red blood cells in the urine of the respondent no.1 and not hematuria,
which was the basis on which the RME Board declared the respondent
no.1 unfit for appointment. Further, there was no report of presence of
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kidney stones in the DME, and this was a new finding given by the
RME Board.
5. We have considered the submissions made by the learned
counsels of the parties.
6. This Court in Staff Selection Commission & Ors. v. Aman
Singh 2024:DHC:8441-DB, on a detailed examination of the
precedents on the subject, has stated the following principles as
applicable to a challenge to a medical examination of a candidate for
appointment in the Delhi Police:
“10.38 In our considered opinion, the
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
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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
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.
(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
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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 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
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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, 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
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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
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
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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
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.”
7. In the present case, though the DME Board does not expressly
say that the respondent no.1 is suffering from hematuria, at the same
time, as per the medical literature, presence of red blood cells in the
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urine is itself called hematuria. In any case, the RME Board has based
its opinion on the clinical examination report of the ultrasound and CT
of the respondent no.1. These reports have also been produced before
us in the present petition.
8. As held by this Court in Aman Singh (supra), once the Medical
Boards have followed the procedure in detail and there is no infirmity
found in the same, being based on the clinical examination reports, the
power of judicial review available with the Court is rather restricted.
The Court cannot substitute its own opinion based on some medical
reports produced by a candidate at a later stage.
9. Accordingly, we are of the opinion that the learned Tribunal has
erred in allowing the OA filed by the respondent no.1 and issuing
directions to the petitioners to have the respondent no.1 re-examined
by a fresh medical board. This would lead to an unending exercise of
recruitment which cannot be permitted in the absence of very cogent
material that may lead to a serious doubt being raised on the reports of
the DME Board or the RME Board. In our view, the respondent no.1
had not met this threshold for interference of the Court.
10. Accordingly, we allow the present petition and set aside the
Impugned Order dated 22.03.2024 passed by the learned Tribunal.
The pending application also stands disposed of.
NAVIN CHAWLA, J
SHALINDER KAUR, J
NOVEMBER 30, 2024/rv/SJ
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