Full Text
HIGH COURT OF DELHI
Date of Decision: 15.01.2025
KAUSHAL KUMAR .....Petitioner
Through: Mr.Prahil Sharma, Adv.
Through: Mr.Soumava Karmakar, SPC, Mr.Rahul Kr.Sharma, GP, Ms.Jyoti Bajaj, Adv.
G.S. Rathore, SI Prahlad Devenda-CIFS
HON’BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J. (Oral)
JUDGMENT
1. Allowed, subject to all just exceptions. W.P.(C) 510/2025 & CM APPL. 2374/2025
2. This petition has been filed by the petitioner, challenging the Detailed Medical Examination Board Report dated 29.11.2024 (in short, ‘DME’) and the Review Medical Examination Board Report dated 06.12.2024 (in short, ‘RME’), by which the petitioner has been declared unfit for appointment to the post of Assistant Sub-Inspector (Executive) in the Limited Departmental Competitive Examination-
2022.
3. The DME in its report dated 29.11.2024, declared the petitioner ‘unfit’ for appointment to the above post, by observing that the petitioner is suffering from ‘Coronal Hypospadias’.
4. The RME referred the petitioner to a Specialist Urologist in the Safdarjung Hospital, New Delhi, and taking into account its report, again declared the petitioner unfit for appointment, vide its Impugned Report dated 06.12.2024, with the following observations: “2) Brief of Review Medical Examination & Finding thereof. Board examined the candidate O/E- Uretheral meatus opening ventral to normal opening scan. Coronal hypospadias seen. Board referred for uro surgical splt opinion from Safdarjung Hospital. Dr. Ketan Kapoor Urologist, Satomjung Hospital opinion. O/E Coronal hypospadias as per Revised guidelines for recruitment in CAPF & AR, May 2015 page 34, para XIII, subpara 3(c) cases of hypospadias should be rejected. Keeping in view of above, 3) Final Opinion a) UNFIT b) UNFIT on account of Coronal Hypospadias.”
5. The learned counsel for the petitioner submits that post being declared unfit for appointment, the petitioner again got himself examined at the VMMC & Safdarjung Hospital, Delhi, wherein the doctor has given the following report:
6. He submits that the doctor has inter alia opined that there are no urinary symptoms and no active management is needed for the condition of the petitioner, and that the petitioner is fit for duty from the urology point of view. He submits that the petitioner has also got himself examined at the Kailash Hospital, Greater Noida, where also it was opined that no intervention is required.
7. The learned counsel for the petitioner submits that the condition suffered by the petitioner is, in fact, by birth, but in spite of the same, the petitioner was duly recruited as Constable (GD) in the CISF, clearly evidencing that the petitioner has been declared fit for appointment.
8. Placing reliance on the Judgment of this Court in Ayush Kumar (Minor) Through Mother Neetu Bhola v. Union of India & Ors., 2022:DHC:2481-DB, he submits that therein as well, the petitioner had been found to be suffering from the Growth Hypospadias and the Soft Pallet (LT) and this Court referred the petitioner therein to the Army (R & R) Hospital for a fresh examination.
9. Issue notice.
10. Notice is accepted by Mr.Soumava Karmakar, the learned counsel for the respondents.
11. He submits that the condition suffered by the petitioner is specifically mentioned as a disqualification in the Uniform Guidelines for the Medical Examination Test (MET) for Recruitment in the CAPFs, NSG & AR (hereinafter referred to as the ‘Medical Guidelines’). He submits that, therefore, no fault can be found in the report of the DME or the RME, specifically when the RME has taken an opinion of the Specialist in this regard.
12. We have considered the submissions of the learned counsels for the parties.
13. Clause 3(c) of Clause XIII (Examination of Inguinal Region and Genitals) of the Medical Guidelines specifically provides that the cases of Hypospadias should be rejected.
14. In the present case, even from the report of the Kailash Hospital, which has been relied upon by the petitioner, the petitioner has been found to be suffering from Hypospadias. This being absolute disqualification, we therefore find no reason to interfere with the report of the DME. We take specific note of the fact that the RME has taken an opinion of the Specialist Urologist before giving its Impugned Report. This is unlike in the case of Ayush Kumar (Minor) Through Mother Neetu Bhola (supra), referred to hereinabove.
15. Merely because the petitioner had been earlier selected for the post of Constable (GD), also cannot come to the support of the petitioner as recruitment through LDCE is independent of the same and the candidate must clear al requirements for the same independently. In Pavnesh Kumar v. Union of India & Ors., 2023 SCC OnLine SC 1583, the Supreme Court has opined as under:
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 exfacie 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 checkup 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. 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. 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 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.”
16. We, therefore, find no merit in the present petition. The same is, accordingly, dismissed. The pending application is also disposed of as being infructuous.
17. Dasti.
NAVIN CHAWLA, J SHALINDER KAUR, J JANUARY 15, 2025/Arya/DG Click here to check corrigendum, if any