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since 1985 practicing as advocate in both civil & criminal laws

Monday, May 6, 2024

The statement of the Medical Officer to the Court, that he had examined more than 30 candidates a day leaves a lot to desire. The pressure of work cannot be an excuse to condone an act which has condemned a youth from his chosen path of serving a dedicated Force. Yet, we also appreciate the reality and pragmatic approach, which would move the Court to hold it’s hands from making any observation against the Medical Officer. But, we cannot extend the same yardstick to the Review Board, more so, when the review was set in motion by the candidate seeking justification for his rejection. The Review Board despite being nudged by the candidate, in our opinion, has behaved like the infamous Roman Emperor Nero. The Review Board, consisting of senior doctors, was expected and it would not be out of the ordinary to expect such persons eminence, a little more care and concern in the discharge of their duties. This is a case which is an example of gross injustice where a person who was otherwise fully eligible and more suitable than the candidature of other candidates, actually suffering from physical deformities, has been 2024:APHC:2166 10 GN, J. & VN, J. W.A.No.251 of 2023 languishing and has lost a valuable decade of service which can be directly attributed to the system. Systemic failure cannot be a ground to deny justice to the candidate who was otherwise, in our opinion, also fully qualified. In our opinion, the Writ Appeal, in our opinion, appears to be borne, more out of ego than out of any merit. Neither the pleadings nor the material demonstrates even an iota of evidence which would support the conclusion drawn by the Review Board and the Appellate Authority.

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GN, J. & VN, J.

W.A.No.251 of 2023

THE HON’BLE SRI JUSTICE G.NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

Writ Appeal No.251 of 2023

JUDGMENT: (per Hon’ble Sri Justice G.Narendar)

Heard Sri C.V.R. Rudra Prasad, learned Central

Government Counsel, for the appellants and Sri M. Kesava Rao,

learned counsel for the respondent/writ petitioner.

2. The appellants herein are (1) the Medical Board (Staff

Selection Commission) rep. by its Senior Medical Officer; (2) the

Deputy Inspector General – Appellate Authority; and (3) the

Staff Selection Commission, rep. by its Regional Director (SR).

3. This intra-Court Appeal is directed against the order of

the learned Single Judge, dated 18.10.2022, rendered in W.P.

No.12228 of 2014, whereby the learned Single Judge was

pleased to issue the following directions on the writ petition of

the respondent herein.

“19. Accordingly, the Writ Petition is allowed with the

following directions:

(i) The proceedings dated 28.01.2014 of the

respondent No.1 and the proceedings, dated

22.03.2014 of the respondent No.2 are hereby

set aside; and

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W.A.No.251 of 2023

(ii) The respondents are directed to reconsider the

claim of the petitioner by taking into

consideration the opinion of the Medical Board,

N.I.M.S., Hyderabad, dated 11.04.2022, for

appointment of the petitioner as Constable

within a period of four (04) weeks from the date

of receipt of a copy of this Order.

There shall be no order as to costs.”

4. The parties herein are referred to by their nomenclature

before the learned Single Judge.

5. At the very outset, we would like to place on record the

shock this case has given to the Court. It is a case where the

candidate has been otherwise found fully qualified and whose

desire for employment with the Security Forces has taken a

beating on account of an alleged deformity of the little finger. As

is often said that fate can be sometimes cruel and this is a

classic example of cruel fate where a candidate, fit as a fiddle, is

made to run around the corridors of the justice dispensation

system for ten long years, which even to a layman would appear

unjustified.

6. The petitioner is present before the Court today and we

have observed his hands and but for a little crookedness, the

little fingers of both hands are fully formed and but for the bent

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W.A.No.251 of 2023

or little crookedness, even we as laymen can confidently state

that the so called deformity would not in any way prove to be

an impediment in the petitioner’s endeavour to discharge his

duties with the Central Industrial Security Force (“C.I.S.F.”).

The Force, which otherwise would have the benefit of a fit and

determined person, has lost out the same to the vagaries of the

system, which in the instant case has been compounded by

sheer negligence on the part of professionals.

7. After hearing the learned counsels, we had asked the

Medical Officer, who had examined and certified the petitioner

as being unfit, to appear and assist the Court. We were

informed that the Doctor has been posted to Arunachal

Pradesh. Hence, we deemed it appropriate to grant liberty to

the Medical Officer to make his appearance through virtual

mode. Today, we have heard Dr.Surender Chowdary, the then

Medical Officer, who examined the petitioner and issued the

certificate holding him to be unfit. We have perused the

certificate in detail and the Government guidelines and we have

posed several queries to the Medical Officer, to which queries,

the Medical Officer’s only refrain was that he has relied on

certain guidelines issued by the Department and on the basis of

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W.A.No.251 of 2023

those guidelines, he has certified that the petitioner to be unfit.

The Medical Officer, was neither able to detail the guidelines

that he had followed, apart from stating in general terms,

nothing in specific nor detail was placed before us by the

Medical Officer though we had put the learned counsel on

notice as to why this Court required his assistance. Hence, the

failure to produce the necessary guidelines, in our opinion, is

inexcusable. That, apart the bare observation of the Medical

Officer, it is clear that there are no other medical records which

would go to demonstrate any inability on the part of the

petitioner to discharge his duties, if he was selected to the post.

8. To a specific query from the Court, as to whether the

deformity was sufficient enough to incapacitate the petitioner or

reduce the efficiency of the petitioner to perform his duties, the

Medical Officer would plead ignorance and would merely

reiterate that the certificate was issued on the basis of the

guidelines and he would further state that he presumed that

the deformity would be an impediment in the petitioner’s effort

to discharge his duties efficiently. When we queried further

about the basis for such presumption with reference to the

alleged deformity, no answers were forthcoming.

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W.A.No.251 of 2023

9. We have also heard Sri C.V.R. Rudra Prasad, learned

Central Government Counsel, appearing for the appellants, in

detail. Matter was passed over in order to give an opportunity

to the appellants to place before this Court any material or

record in support of their contention and justifying the medical

certificate. In the post-lunch session, the appellants have

placed on record the guidelines (revised) stipulated by the

Ministry of Home Affairs (Police Division-II), Government of

India, dated 20.05.2015.

10. We have perused the same. Under the guidelines, several

instructions and clarifications have been issued to eliminate,

presumably, any arbitrariness in the process of certification of

the physical fitness of the candidates. Sl. No.5 of the guidelines

stipulates the parameters for general examination and

Sl.No.5(g) reads as follows:

“Limbs, hands & feet should be well formed & fully

developed and there shall be perfect motion of all the joints.”

11. Implying thereby, the limbs i.e. hands and feet should be

fully formed and there should be motion of all joints. If the

medical certificate is appreciated in this background, we do not

find any opinion recorded which states that the motion of the

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W.A.No.251 of 2023

joints is restricted or there is no motion of the joints of the little

finger because of the alleged deformity.

12. It would also be interesting to note Sl.No.5 (j) which

stipulates that general examination should reveal that feet and

toes are well formed. Similar stipulation is not found for the

hands and fingers. Sl.No.6 stipulates the general grounds for

rejection.

13. The only other ground of some import would be Sl.No.6 (4)

which reads as under:

“(4). Generally impaired constitution, so as to impede

efficient discharge of training/duties.”

As observed supra and at the cost of repetition, there is no

opinion recorded, either by the medical officer or the medical

board that the bend or crookedness in the little finger, would

come in the way of discharging duties and that too efficiently.

14. This Court observes that there are 29 indicators. The

remaining 28 apply to specific deformity or impediment and

none of them apply to either to the upper limb or palm or the

finger. Sl.No.7 details minor acceptable defects and the

relevant entry i.e. Sl.No.7 (l) reads as under:

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W.A.No.251 of 2023

“(l) Loss of only soft tissues of terminal phalanx of little

finger of one or both hands is to be accepted.”

15. In the instant case, it is not even a case of loss of soft

tissues, as the little fingers of both hands appear well rounded.

The Note appended to Sl.No.7 makes an interesting reading and

they are extracted for the sake of convenience:

“NOTE:

(a) In all cases where a candidate suffering from

trifling defects is accepted the Recruiting Medical Officer

should fully satisfy himself that the defect will not in any way

affect the efficiency of candidate and the defects should

invariably be mentioned in recruitment form.

(b) Candidates suffering from minor defects of ordinary

nature such as simple sores, shoe bite, common cold and

similar other ailment which usually last only a few days, may

be accepted. Recruiting Medical Officer before accepting such

a candidate must fully satisfy himself that the disease is likely

to be cured in a few days with outdoor treatment.

(c) In doubtful cases candidates may be referred to a

specialist for examination and opinion which may include XRay examination or any other special investigation/test/

examination.”

16. Note (a) and (c) are of relevance. It is probably this

burden the Medical Officer found onerous and in order to avoid

expending his energy for recording his opinion, chose the easier

way out and declared the candidate unfit with a mere sentence.

It is this, which in our opinion, is the bedrock upon which the

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W.A.No.251 of 2023

respondents should have established their case. A reading of

the Note (a) and (c) makes it amply clear that the opinion of the

Medical Officer cannot be whimsical, but, should be backed by

reasons, not only for recommending but also for rejecting the

case of the candidate.

17. It cannot be gainfully argued that, grounds should be

recorded only for recommending a candidate as fit, and despite

trifling defects, no reasons be recorded for certifying a

candidate as unfit, when no obvious deformity or impairment is

present. If such a case is accepted, it would amount to and

give scope for arbitrariness and the instant case is a classic

example of that. The impasse that has led to this Writ Petition

and the Writ Appeal is directly traceable to the negligent

conduct of the Medical Officer and the Review Board. It is

shocking to see that the Review Board, consisting of three

doctors, have proceeded to affirm the opinion of the Medical

Officer even without a bare discussion about the deformity or

the effects of the deformity in the performance and discharge of

the duties. The omissions and commissions, which colour this

case with arbitrariness, leave this Court with no option, but to

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W.A.No.251 of 2023

express anguish in the manner in which lives and careers of the

burning youth of this country is stifled & trifled with.

18. The statement of the Medical Officer to the Court, that he

had examined more than 30 candidates a day leaves a lot to

desire. The pressure of work cannot be an excuse to condone

an act which has condemned a youth from his chosen path of

serving a dedicated Force. Yet, we also appreciate the reality

and pragmatic approach, which would move the Court to hold

it’s hands from making any observation against the Medical

Officer. But, we cannot extend the same yardstick to the

Review Board, more so, when the review was set in motion by

the candidate seeking justification for his rejection. The Review

Board despite being nudged by the candidate, in our opinion,

has behaved like the infamous Roman Emperor Nero. The

Review Board, consisting of senior doctors, was expected and it

would not be out of the ordinary to expect such persons

eminence, a little more care and concern in the discharge of

their duties. This is a case which is an example of gross

injustice where a person who was otherwise fully eligible and

more suitable than the candidature of other candidates,

actually suffering from physical deformities, has been

2024:APHC:2166

10

GN, J. & VN, J.

W.A.No.251 of 2023

languishing and has lost a valuable decade of service which can

be directly attributed to the system. Systemic failure cannot be

a ground to deny justice to the candidate who was otherwise, in

our opinion, also fully qualified. In our opinion, the Writ

Appeal, in our opinion, appears to be borne, more out of ego

than out of any merit. Neither the pleadings nor the material

demonstrates even an iota of evidence which would support the

conclusion drawn by the Review Board and the Appellate

Authority.

19. In that view of the matter, we deem it appropriate and

most justified to dismiss the Writ Appeal with exemplary costs.

We have examined the Appeal and the case of the appellants

from every conceivable angle and we do not find a grain of

justification for the appeal. Time, money, resources and

precious judicial time has been, in our considered opinion,

wasted on this litigation just to sustain an erroneous opinion.

20. In that view of the matter, the Writ Appeal is dismissed

with exemplary costs, quantified at Rs.3.00 Lakhs, which shall

be paid by the appellants 1 and 2 at the rate of Rs.1.50 Lakhs

each. The appellants 1 and 2 shall deposit the costs within a

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GN, J. & VN, J.

W.A.No.251 of 2023

period of four weeks from the date of receipt of a copy of this

order. Out of which, the respondent/writ petitioner is entitled

to recover the costs of Rs.1.00 Lakh from the members of the

Review Board, if it so deems it fit and necessary. It is entitled to

do so after issuing a notice to the members of the Review Board

and after affording them an opportunity of hearing. The

directions of the learned Single Judge in our opinion are fully

justified and supported by cogent reasons and do not call for

any interference.

21. Accordingly, the Writ Appeal stands dismissed with costs.

Consequently, miscellaneous petitions, pending if any,

shall stand closed.

 ________________________

 JUSTICE G.NARENDAR

____________________________

 JUSTICE NYAPATHY VIJAY

Date:03.01.2024.

Note:

L.R. copy to be marked.

B/O

cs/anr

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GN, J. & VN, J.

W.A.No.251 of 2023

* THE HON’BLE SRI JUSTICE G.NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

+ Writ Appeal No.251 of 2023

% Dated 03-01-2024.

# 1.Medical Board (Staff Selection Commission), rep. by its

Senior Medical Officer, CAPFs Constable (GD) Examination,

2013-14, CISF, KRTC MUNDALI DME CONST/GD-13 at NISA,

Hyderabad, P.O. Hakimpet, Hyderabad – 500 078 & Ors.

….. Appellants

Vs.

$ S.Yugandhar S/o.Thirupati Rao, R/o.Venkateswara Colony,

Thagarapuvalasa, Bhemeli Mandal, Visakhapatnam District.

..Respondent

! Counsel for the Appellants : Sri C.V.R. Rudra Prasad,

 Learned Central Govt. Counsel.


^ Counsel for the respondent : Sri M.Kesava Rao



<GIST:

> HEAD NOTE:

? Cases referred: Nil.

2024:APHC:2166

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GN, J. & VN, J.

W.A.No.251 of 2023

IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH

Writ Appeal No.251 of 2023

1.Medical Board (Staff Selection Commission), rep. by its Senior

Medical Officer, CAPFs Constable (GD) Examination, 2013-14,

CISF, KRTC MUNDALI DME CONST/GD-13 at NISA,

Hyderabad, P.O. Hakimpet, Hyderabad – 500 078 & Ors.

….. Appellants

Vs.

S.Yugandhar S/o.Thirupati Rao, R/o.Venkateswara Colony,

Thagarapuvalasa, Bhemeli Mandal, Visakhapatnam District.

..Respondent

JUDGMENT PRONOUNCED ON: 03-01-2024

THE HON’BLE SRI JUSTICE G.NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

1) Whether Reporters of Local newspapers

may be allowed to see the Judgments?

 -Yes2) Whether the copies of judgment may be marked

to

 Law Reporters/Journals

 -Yes3) Whether Their Ladyship/Lordship wish to see the

fair copy of the Judgment?

 -YesJUSTICE G. NARENDAR

2024:APHC:2166

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