Pavnesh Kumar vs Union Of India

2023 INSC 1025 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3641 OF 2023

PAVNESH KUMAR …APPELLANT

VERSUS

UNION OF INDIA & ORS. …RESPONDENT

J U D G M E N T

PANKAJ MITHAL, J.

1. Learned counsel appearing for the parties were heard.

2. The appellant who was working as a constable with the Border

Security Force (BSF), applied for the post of Sub-Inspector

General Duty (GD) through Limited Departmental Competitive

Examination (LDCE) 2018-19 but was declared medically unfit

and the said order was not disturbed even in the review medical

examination by Board of three doctors.

Signature Not Verified Digitally signed by Anita Malhotra

3. Date: 2023.11.28 14:41:30 IST Reason: Aggrieved by the above action of the respondent BSF declaring

him medically unfit for the post of Sub-Inspector (GD) through

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LDCE, the appellant preferred a writ petition before the Delhi

High Court for quashing the medical result dated 27.02.2020 of

the review medical examination and for a direction to the

respondent BSF to treat him medically fit.

4. The writ petition (civil) so filed by the appellant was dismissed

by the High Court vide impugned order dated 24.09.2020.

5. In the above factual scenario, the appellant has preferred this

appeal.

6. Learned Counsel for the appellant submitted that the appellant

was found medically fit on 16.12.2019 and as such the

respondent BSF was not competent to declare him unfit

subsequently on 23.12.2019. The appellant underwent a small

surgery whereupon he was found to be medically fit for the post

but even then, the review medical examination on 27.02.2020

declined to clear him as medically fit to hold the post of Sub-

Inspector (GD).

7. The appellant was appointed as a Constable (GD) with the BSF

w.e.f. 04.04.2012. After the appellant had put in about 8 years

of service as a Constable, an advertisement was issued by the

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respondent BSF inviting applications from serving BSF

Male/Female Constables (GD), Head Constables (GD), ASI (GD)

etc for selection to the post of Sub Inspector (GD) through LDCE

2018-19. The advertisement provided for the eligibility

conditions and for the scheme of examination. The eligibility

conditions provided; (i) the upper age limit of 32 years on the

closing date of application for appearing in LDCE; (ii) that the

candidate should have completed 4 years of service including

basic training; (iii) graduation with unblemished clean record of

entire service until the issuance of offer of appointment; and (iv)

must fulfil the physical standards laid down. Another eligibility

condition was that candidate should qualify SHAPE-I medical

category. The scheme of examination consisted of five stages. In

the stage-I, service records were to be checked and verified, in

stage-II, the candidates were to undergo written examination

(OMR based), stage-III was of a physical measurements (PST)

and stage-IV was a physical efficiency test (PET). Upon

successful completion of all the above four stages, the

candidates were to undergo detailed medical examination i.e.

stage-V wherein they must be declared medically fit for the post.

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8. In view of the above terms and conditions of the advertisement

for the post of Sub-Inspector (GD) through LDCE, the

candidates were supposed to successfully complete the first

four stages of the examination and then have to be medically

declared fit for the post in the fifth stage. The declaration of

medically fit after undergoing the four stages of the examination

was in addition to the eligibility condition of being in the medical

category SHAPE-I which was a condition precedent for

participating in LDCE. The declaration of any candidate in the

medical category SHAPE-I was not sufficient enough to treat

him to be medically fit for the post.

9. The appellant was issued a call letter dated 16.11.2019 by the

recruitment officer to appear in the detailed medical

examination for selection to the post of Sub-Inspector (GD) in

BSF through LDCE 2018-19. The said letter indicates that the

appellant was called for stage-V detailed medical examination

on 23.12.2019. Upon such medical examination on the

aforesaid date, the appellant was not found medically fit for the

reason that he suffered from Right Sided Varicocele, Varicose

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Vein left calf, Tachycardia pulse rate 110/min (normal range

60-110/min).

10. The appellant appealed against the above decision whereupon

the review medical examination by Board of three members on

27.02.2020 confirmed the medical report and declared the

appellant to be unfit. The Medical Board recorded the reasons

of unfitness of the appellant noticing the fact that he was

operated upon on 28.12.2019.

11. The submission of the Counsel for the appellant that once the

appellant was declared medically fit, the respondent BSF could

not have reviewed the matter to take a contrary decision

declaring him medically unfit.

12. The above submission of the counsel is ex-facie bereft of merit

as the appellant was never declared medically fit for the post of

Sub-Inspector (GD) pursuant to his candidature for the said

post through LDCE. The appellant had undergone routine

annual medical check-up as a constable and was declared in

medical category SHAPE-I, which was the eligibility condition

for applying to the post of Sub-Inspector (GD) through LDCE.

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The appellant was never declared medically fit in the process of

selection for the post of Sub-Inspector (GD). The appellant may

have qualified stage-I to stage-IV of the process of examination

but never qualified stage-V which consisted of the detailed

medical examination. The said detailed medical examination as

per the call letter referred to above was done only on 23.12.2019

and not on any earlier date. In the said detailed medical

examination the appellant was declared unfit which decision

was upheld by the review medical examination by the board of

three members despite appellant having undergone a minor

surgery for the cure of medical deficiencies pointed out earlier.

The medical examination of the appellant conducted on

16.12.1999 was a routine annual examination which declared

him in medical category SHAPE-I. It was not a part of

examination process for selection to the post of Sub-Inspector

(GD) through LDCE. The appellant never successfully qualified

all the five stages of examination as advertised for the selection

to the post of Sub-Inspector (GD) through LDCE.

13. It was next contended that the appointment through LDCE is

like fast-track promotion and is not a fresh appointment. Page 6 of 9 Civil Appeal No. 3641 of 2023

Therefore, recruitment rules and guidelines applicable to the

normal mode of promotion would have been applied and not any

different medical standards.

14. No doubt appointment to a higher post of an incumbent working

on lower post is in the form of an accelerated promotion but it

cannot be equated with normal mode of promotion. This is

evident from the advertisement itself which in unequivocal

terms states that applications are invited for selection to the

post of Sub-Inspector (GD) in BSF through LDCE. The very fact

that the applications were invited for selection to the post of

Sub-Inspector (GD) connotes that it was not a normal

promotion rather selection to the higher post from amongst the

eligible candidates working on the lower post. Thus, the

submission that the normal rules of promotion or medical

examination ought to have been applied, is not acceptable.

15. This apart, selection was to be conducted in terms of the

advertisement. The scheme of the selection contained in the

advertisement categorically provided clearing of the

examination in all the five stages which included detailed

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medical examination. This was independent and in addition of

the eligibility condition that a candidate must possess the

medical category SHAPE-I while working on the lower post.

16. Additionally, a distinction has to be drawn between a normal

promotion and promotion by selection through LDCE.

Promotion by selection through LDCE vis-à-vis competitive

examination is a facility or a chance given for out of their

promotion without waiting for the normal course of promotion.

It in effect is selection through competitive examination within

the limited category of candidates and cannot be equated with

normal promotion. This being the position, the argument that

regular promotion criteria had to be applied with regard to

medical fitness even in the matter of selection through LDCE is

not acceptable.

17. In view of the above facts and circumstances, we find no

substance in the appeal. There is no review of the medical of the

appellant and the declaration that he is “medically unfit”, is not

contrary to any earlier reports as he was never declared to be

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medically fit in the process of examination for selection to Sub-

Inspector (GD) through LDCE.

18. The judgment and order of the High Court dismissing the writ

petition upholding the decision of the Medical Board declaring

the appellant as medically unfit does not suffer from any error

of law or fact. Accordingly, the appeal is dismissed with no order

as to cost.

……………………….. J.

(ABHAY S. OKA)

……………………….. J.

(PANKAJ MITHAL) NEW DELHI;

NOVEMBER 28, 2023.

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