STAFF SELECTION COMMISSION AND ORS Vs VIRENDRA SINGH RATHORE

which came up before this Court in Staff Selection Commission v Aman Singh1, are involved. All these petitions involve cases in which the concerned respondents sought recruitment to the post of Constable in the Delhi Police and were, consequent to a Detailed Medical Examination2 and Review Medical Examination3, found unfit for appointment. The Central Administrative Tribunal4, whom the respondents petitioned, has followed an earlier order passed by it in

1 2024 SCC OnLine Del 7600 2 “DME” hereinafter 3 “RME” hereinafter 4 “The Tribunal” hereinafter

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Teekam Singh Meena v SSC5 and held, in each case, that the respondent

should be subjected

to a

“Re-Review Medical

Examination”. Aggrieved thereby, the Staff Selection Commission and the Union of India have petitioned this Court under Article 226 of the Constitution of India.

2.

We went into the existing law on this issue in considerable

detail and drew up the following guidelines in SSC v Aman Singh, after considering earlier authorities on the issue: “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 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 5 Order dated 10 May 2024 in OA 519/2024

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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.6 (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 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 6 This follows from the well-established principle, enunciated in Taylor v. Taylor, [L.R.] 1 Ch. 426 and

subsequently followed by the Privy Council in Nazir Ahmed v. King Emperor, AIR 1936 PC 253 and by the Supreme Court in a catena of cases including State of UP v. Singhara Singh, AIR 1964 SC 358 that, where the statute, or the law, requires an act to be done in a particular manner, that act has to be done in that manner alone and in no other, all other modes of doing the act being necessarily forbidden. W.P.(C) 14088/2024 & Connected matters Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:16.11.2024 19:05:58

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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, 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.

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(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 reexamined 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 W.P.(C) 14088/2024 & Connected matters Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:16.11.2024 19:05:58

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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 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.”

3.

Clearly, therefore, the issue of whether a case for referring the

matter for a fresh medical examination exists or does not exist has to be decided on the basis of the test laid down in sub paras (a) to (f) of para 10.38(iv) and 10.38(vi).

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4.

We, therefore, proceed to apply these tests in the present batch

of petitions.

W.P.(C) 14088/2024 (SSC v Amit Goswami)

5.

In this case, the requirement to going into any detail is obviated

by the fact that the decision of the Review Medical Examination Board is not signed by the Presiding Officer of the Board.

6.

As such, the decision is no decision in the eyes of law. Mr.

Singhal, learned Counsel for the respondent submits that the reluctance of the Presiding Officer of the Review Medical Board to sign the decision was because she was of the view that his client did not suffer from knock-knee, which is the disabling ailment in this case, by reason of which the RME holds the respondent unfit for appointment as Constable.

7.

He submits that this assertion has not been traversed by the

petitioners in its writ petition filed before this Court.

8.

We need not enter into that aspect as, in our view, the decision

of the Review Medical Board cannot be treated as a valid decision at all, as it is not signed by the Presiding Officer and is only signed by the remaining two members. There is, therefore, clear lack of unanimity among the members of the Review Medical Board on the aspect of fitness or unfitness of the respondent for recruitment as Constable. W.P.(C) 14088/2024 & Connected matters Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:16.11.2024 19:05:58

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9.

In that view of the matter, we find no justifiable cause to

interfere with the decision of the Tribunal directing the respondent to be submitted to a Re-Review Medical Examination.

10.

The judgment of the Tribunal is, therefore, affirmed.

11.

The writ petition is accordingly dismissed.

WP (C) 13998/2024 [SSC & ors v Sanjoo Patel]

12.

In this case, the Detailed Medical Examination7 report dated 23

January 2024 opined that the respondent was “temporarily unfit” for appointment as Constable on the ground that her Haemoglobin count was 8.5, which was insufficient. The matter was not referred to any expert.

13.

Two factors need to be noted here. The first is that, in the

DME report, there are separate heads for declaring a candidate “unfit” and declaring a candidate “temporarily unfit”. The respondent was declared “temporarily unfit” on the ground that her Haemoglobin count was 8.5.

14.

The Review Medical Examination8 came to be conducted five

days thereafter. Significantly, the respondent’s Haemoglobin count 7 “DME”, hereinafter 8 “RME” hereinafter

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had by then risen to 8.9. The RME disqualified her from appointment on the ground that her Haemoglobin count was low.

15.

In these circumstances, especially as the DME had rated the

respondent only as temporarily unfit and not as unfit for appointment, and, within five days, her Haemoglobin count had risen from 8.5 to 8.9, we feel that, in the interests of justice and without treating it as a precedent, we should not interfere with the decision of the Central Administrative Tribunal to allow the respondent to be re-examined once again.

16.

Accordingly, we affirm the decision of the Tribunal and dismiss

this writ petition.

WP (C) 14076/2024 [SSC & ors v Anjali]

17.

In this case, the DME opined that the respondent was unfit for

appointment as a Constable on account of “(i) distant vision L/E-6/24, (ii) 7 m. not seen, (iii) carrying angle >209”.

18.

No further investigations were conducted before the matter was

examined by the Review Medical Board. The RME, which took place on 23 January 2024, rendered the following final opinion: “3)

Final opinion (b)

Unfit on account of:

9 also medically known as “cubitus valgus”

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1)

Anisometropic Amblyopia L/Eye

2)

Cubitus valgus Rt 25/Lt.-30”

19. Ms. Esha Mazumdar, learned Counsel for the respondent, advances two submissions. The first is that a diagnosis of Cubitus Valgus cannot be returned without the patient being referred for orthopaedic opinion.

The second is that there is a discrepancy

regarding the ocular condition of the patient, between the DME and the RME, with the DME opining that the patient was suffering from distant vision in the left eye, whereas the RME opined that the patient was suffering from Anisometropic Amblyopia in the left eye.

20.

The American Academy of Ophthalmology states thus, on

amblyopia and its various avatars: “Uncorrected refractive errors are considered the most

common cause of amblyopia. There are two main types of refractive amblyopia. Anisometropic amblyopia refers to unilateral amblyopia caused by a distinct refractive error of each eye. Isoametropic amblyopia occurs when both eyes are amblyopic from a significant yet similar refractive error. Severity of the refractive error and the amblyopia are directly related. Anisometropic amblyopia is likely in the presence of 1.0–1.5 D or more anisohyperopia, 2.0 D or more anisoastigmatism, and 3.0–4.0 D or more anisomyopia. Bilateral or isoametropic amblyopia may occur in the presence of 5.0–6.0 D or more of myopia, 4.0–5.0 D or more of hyperopia or 2.0–3.0 D or more of astigmatism. Amblyopia caused by significant astigmatism is referred to as meridional amblyopia.” W.P.(C) 14088/2024 & Connected matters Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:16.11.2024 19:05:58

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21.

There is, therefore, a cleavage of opinion between the RME and

the DME, insofar as the ocular ailment from which the respondent is suffering is concerned. Whereas the DME has opined that the respondent is suffering from distant vision, the RME states that she is suffering from Anisometropic Amblyopia.

It is clear that distant

vision and Anisometropic Amblyopia are not the same, even if there may be some kinship between the two.

22.

Ms Bobde, learned Counsel for the petitioner, submits that,

inasmuch as either of the two conditions, namely, Anisometropic Amblyopia and Cubitus Valgus would suffice to render the respondent unfit for appointment as a constable, and as there is concurrence of opinion regarding the respondent suffering from Cubitus Valgus, the Tribunal was not justified in referring the respondent for a re-examination.

23.

We are not able to subscribe to the submissions of Ms Bobde. It

is not possible for us, by reading the report of the Review Medical Board, to presume that each of the conditions from which the respondent is suffering is individually sufficient to render the respondent unfit for appointment.

It is equally possible that the

Review Medical Board has found her unfit for appointment only because she is suffering from both the conditions i.e. Anisometropic Amblyopia in the left eye, and Cubitus Valgus.

24.

If that is the case, it is a matter of conjecture as to whether, if

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the respondent was suffering from only one of the two conditions, or if the respondent was suffering from distant vision in the eye and cubitus valgus, she would still be regarded as unfit for appointment as Constable.

25.

Ms Bobde has also drawn our attention, particularly to Clause

(d) and (g) of the appendix to the Delhi Police (Appointment & Recruitment) Rules, 1980, which read thus: “(d)

The recruit should be healthy, strong and active” *****

(g) There should be prefect motion in every joint and good physical development and power.”

26.

Ms Bobde’s submission is that a person who is suffering from

carrying angle defect of more than 20 degree cannot be said to be having perfect motion in every joint.

27.

Though we do try, in our own humble way, to provide

therapeutic relief to the afflicted, we are not doctors. We cannot return such a finding. That is a matter which has to be decided by the competent doctors who would examine the candidates.

28.

Inasmuch as there is a discrepancy in the diagnosis regarding

the ocular condition from which the respondent is suffering, between the DME and the RME, and we do not know whether, even if there were defect in the carrying angle, that would by itself suffice to render the respondent unfit for appointment, we do not feel that this is a case W.P.(C) 14088/2024 & Connected matters Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:16.11.2024 19:05:58

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for interference with the decision of the Tribunal referring the respondent to a re-re-medical examination.

29.

Ms Mazumdar also sought to submit that a diagnosis of cubitus

valgus could not be returned without a radiological examination, specifically an X-ray. Again, we are not doctors, and cannot venture any opinion on the submission.

30.

However, we affirm that the respondent would be examined on

both counts. It would be for the Review Medical Board to take a call as to whether to subject the respondent to an X-ray, or not to do so. Needless to say, we expect that such a call would be taken keeping in mind established medical principles.

31.

We affirm the decision of the Tribunal, subject to the above

observations.

32.

The writ petition stands disposed of accordingly.

WP (C) 13867/2024 [SSC v Virendra Singh Rathore]

33.

In this case, the DME report dated 23 January 2024 opined that

the respondent was suffering from enlarged tonsils and, therefore, unfit for appointment. When the matter went to the RME, the Review Medical Board referred him for expert opinion to the ENT10

10 Ear, Nose and Throat

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Department of the Lok Nayak Jai Prakash Hospital11. Five days prior to his being examined by the LNJP Hospital, the respondent had gotten himself operated. The LNJP Hospital, therefore, in its report dated 29.01.2024, found the respondent to be “fit from ENT side”.

34.

However, the Review Medical Board examined the respondent

on the very next day and declared him unfit for appointment because the wound was not healed and that “slough” was present. The exact report reads thus: “Patient had chronic tonsillitis. Operated on 24/01/24. Wound not heal properly & slough present. ENT opinion taken: Remark 4 days before operated case with slough present.”

35.

“Slough”, we find from available literature, is “the by-product

of the inflammatory phase of wound healing comprising of fibrin, leucocytes, dead and living cells, microorganisms and proteinaceous material”.

36.

We are unable to sustain the ground on which the respondent

has been disqualified from appointment. Applying the principles laid down by us in Aman Singh, the respondent has been referred by the RME to the LNJP Hospital, due deference was required to be accorded to the report of the hospital. The hospital found that in view of the surgery, which the respondent had undergone, he was fit from the ENT for appointment. It is a matter of common knowledge that a tonsil surgery takes some time to heal. Unfortunately, the Review

11 “LNJP Hospital”, hereinafter

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Medical Board, on the very next day disqualified the respondent from appointment, not on the ground that he was suffering from enlarged tonsil any more, but that the wound had not healed.

37.

As the declaration of unfitness for appointment, by the RME,

was not on the ground of any subsisting ailment, but because the wound consequent to his tonsil operation had not healed, we are of the opinion that the interests of justice would justify examining the respondent once again, to assess whether his would has healed sufficiently, so as to render him fit for appointment. We say so especially in view of the opinion of the LNJP Hospital, to which the RME had itself referred the respondent, and the fact that the final RME report does not provide any reason for differing with the view of the Hospital.

38.

We, therefore, affirm the decision of the Tribunal to refer the

respondent to a re-medical examination.

39.

The writ petition is accordingly dismissed.

W.P.(C) 13089/2024 [UOI v Sagar Kumar]

40.

The respondent, in this case, was suffering from Varicocele

Grade IV Left Side. There is concurrence of opinion in this regard of the DME and RME.

41.

The submission of Mr. Rajesh Chauhan, learned Counsel for

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the respondent is, however, that in the case of an identical ailment from which another candidate Vatan Singh was suffering, the RME referred him to the Baba Saheb Ambedkar Hospital.

42.

In this case, the DME, in its report dated 16 January 2024,

opined that the petitioner was unfit for appointment as Constable on the ground that he suffered from “?? Right Inguinal Hernia”.

43.

The respondent was, therefore, referred to the Imaging &

Clinical Labs LLP for an ultrasonological examination. The USG12 report does not make any reference to Hernia, but diagnoses the respondent as suffering from Left Sided Varicocele (Grade IV).

44.

Following this, the Review Medical Board, in its report dated

23 January 2024, held the respondent unfit for appointment as constable on the ground that he suffered from Left Sided Varicocele (Grade IV).

45.

Mr Chauhan, learned Counsel for the respondent submits that

the respondent has since been treated for the ailment and is presently free of it and does not suffer any more from Varicocele.

46.

There are two reasons why we deem it appropriate to uphold

the decision of the Tribunal.

12 Ultrasound

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47.

The first is that there is a discrepancy between the DME and the

RME. The DME does not record the existence of any Varicocele but finds the respondent to be suffering from Right Inguinal Hernia. As against this, the RME has not returned any observation about the existence of Hernia but has disqualified the respondent from appointment on the ground that he suffers from Left Sided Varicocele (Grade IV).

48.

The second reason why we are not inclined to interfere is

because, in an identical case of one Vatan Singh, who was also suffering from Left Sided Varicocele, the RME referred him to the Baba Saheb Ambedkar Hospital for opinion.

49.

In that case, the Baba Saheb Ambedkar Hospital found the

candidate to be suffering from bilateral Varicocele but opined that, if he underwent surgical intervention, he could possibly be fit for appointment. We found that, without waiting for the candidate to undertake a surgical intervention, the RME straight away proceeded to declare him unfit for appointment. In our judgment in Aman Singh, we have held that this was not permissible and have, therefore, upheld the Tribunal’s decision to refer Vatan Singh for a re-review Medical Examination.

50.

There is no reason why if, in the case of Vatan Singh, the

Review Medical Board felt it appropriate to refer him to a specialist Urologist for opinion, a similar process was not followed in the case of present respondent. W.P.(C) 14088/2024 & Connected matters Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:16.11.2024 19:05:58

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51.

Accordingly, we uphold the decision of the Tribunal. We direct

that the panel which examines the respondent afresh shall also consist of a Urologist. The decision of the panel would be binding on the respondent.

52.

The decision of the Tribunal, therefore, stands affirmed. The

writ petition stands dismissed.

WP (C) 13420/2024 [GNCTD v Ravinder Singh]

53.

In this case, the DME returned a tentative opinion that the

respondent was a case of “hearing loss left ear” and referred the matter to the ENT Department of the Lok Nayak Jai Prakash Narain Hospital as well as defective near vision. The respondent was referred for assessment to the LNJP Hospital. The LNJP Hospital also confirmed the fact that the respondent was suffering from moderate to severe sensorineural hearing loss in the left ear and that therefore the candidate was “unfit from ENT side”. On the aspect of vision abnormality, the Guru Nanak Eye Centre, which is associated to the LNJP Hospital, found the condition of the respondent to be acceptable according to the applicable guidelines.

54.

The Review Medical Board declared the respondent to be unfit

for appointment as Constable on the ground of hearing loss.

55.

It goes without saying that hearing defect can be a serious

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impairment for a person who is aspiring to work as Constable. Moreover, the respondent was confirmed by the LNJP Hospital as suffering from moderate hearing loss.

56.

Applying Aman Singh, as there is concurrence between the

DME and the RME that the respondent was suffering from moderate hearing loss and the RME has declared the respondent unfit for appointment as Constable on the same ground, we do not feel this to have been a fit case for referring the respondent to be examined all over again. As such, the impugned judgment of the learned Tribunal in this case is quashed and set aside. 57.

The writ petition stands allowed accordingly.

WP (C) 13976/2024 [SSC & others v Brij Kishore Meena]

58.

In this case, the report of the Detailed Medical Board opined

that the respondent was unfit for appointment as Constable on the ground that he suffered from defective distant vision and Haemorrhoids. He was referred by the Review Medical Board for expert opinion on both these issues. Though the opinion of the expert is not on record, we find that there is concurrence of opinion in the matter of defective distant vision in the DME and the RME, the only difference being that the DME has found the respondent to be suffering from 6/18 vision in both eyes whereas the RME finds the respondent to be suffering from 6/18 vision in right eye and 6/24 vision in the left eye. W.P.(C) 14088/2024 & Connected matters Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:16.11.2024 19:05:58

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59.

It is also noted that the constitution of the RME included an

Eye Specialist.

60.

In that view of the matter, as there is concurrence of opinion on

the fact that the respondent is suffering from defective distant vision, we do not feel this to be an appropriate case where the respondent should be permitted to take a fresh medical opinion.

61.

Accordingly, the impugned order of the Tribunal is quashed

and set aside.

62.

The writ petition stands allowed accordingly.

C. HARI SHANKAR, J.

TUSHAR RAO GEDELA, J. NOVEMBER 14, 2024/ar Click here to check corrigendum, if any

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