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Pooja v. Union Of India And Others
Synopsis of Judgment — AMIT BANSAL, J. (with RAJIV SAHAI ENDLAW, J.) — May 27, 2021
Factual and Procedural Background
The petitioner applied for Sub-Inspector (Delhi Police and CAPFs) and Assistant Sub-Inspector (CISF) in an SSC recruitment notified on 3 March 2018. She qualified Paper I, PET/PST and Paper II, and attended the Detailed Medical Examination (DME) on 17 September 2020. The DME result dated 18 September 2020 declared her unfit due to surgeries on the right breast: (i) in 2007 - Lymphangioma Circumscriptum (no documents available) and (ii) in 2019 - Breast Reconstruction (Artemis Hospital). The petitioner appealed to the Review Medical Board (RMB), which on 3 December 2020 again declared her unfit on account of having been operated for breast reconstruction in 2019 with a silicone implant.
The petitioner filed the present writ petition under Articles 226 and 227 challenging the DME and RMB/RME orders, and sought a direction restraining respondents from declaring the final recruitment result and directing constitution of an independent medical board (for example at Army Hospital (Research and Referral)) to re-examine her. The petition came up before this Court on 2 February 2021 when notice was issued; the respondents filed a counter affidavit and a short affidavit thereafter.
Legal Issues Presented
- Whether the DME and the Review Medical Board's finding (RME/RMB) declaring the petitioner unfit for the posts was valid and sustainable.
- Whether the Court should direct an independent re-examination by a different medical board (for example at Army Hospital) and restrain respondents from declaring the final result.
- Whether fitness certificates issued by other hospitals/medical practitioners (including a government hospital) can override the DME/RMB findings under the applicable Medical Manual.
- Whether the RMB conducted the RME in accordance with the Medical Guidelines and whether the composition of the RMB was appropriate for the medical issue in dispute.
Arguments of the Parties
Petitioner's Arguments
- The Medical Guidelines (Medical Manual) are silent on declaring medical unfitness specifically for Breast Reconstruction or Surgery for Lymphangioma Circumscriptum on the right breast.
- The petitioner met all criteria laid down by the respondents and there was no evidence of malignancy or deformity.
- The RMB did not pass its order in accordance with the Medical Guidelines.
- The RMB of three doctors did not include any specialist in the specific field relating to the petitioner's condition.
- The petitioner produced two subsequent medical examinations (dated 21 and 22 September 2020) including one at a government hospital, both certifying fitness for the posts; the RMB did not take these fitness certificates into consideration.
- The petitioner relied on a certificate dated 21 September 2020 from Consultant Plastic Surgery, Artemis Health Institute stating she can participate in outdoor activities and training despite implants; also relied on a fitness certificate from General Surgeon, Civil Hospital, Rewari.
Respondents' Arguments
- The RMB was duly constituted consisting of three expert medical practitioners.
- The Medical Manual (Guidelines for Recruitment Medical Examination, revised via MHA OM dated 20 May 2015) contains no provision permitting a candidate to be declared fit for recruitment on the basis of a fitness certificate issued by any medical practitioner.
- The DME and RME were held in accordance with the Medical Manual.
- The decision of the RMB is final and no appeal is permissible against that decision.
- The respondents filed a medical opinion by the General Surgeon, CMO(SG), BSF, stating presence of implants will hinder discharge of duties; relying upon Clause 11(1) of the Medical Manual which provides that "Any evidence of implants in situ anywhere in body will lead to rejection."
- The respondents relied on a number of judgments of this Court and the Calcutta High Court to support their contentions concerning the primacy of the Forces' medical opinion and the non-acceptance of contrary private/government doctors' opinions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ishwar Singh Vs. Union of India MANU/DE/0813/2021 (DB) | Referred as a recent decision of this Bench supporting the respondents' position (context: deference to Forces' medical opinion). | The Court relied on this decision as part of a line of precedents that support deference to the Forces' medical opinion in recruitment medical fitness matters. |
| Arun Kumar Vs. Union of India MANU/DE/1834/2020 (DB) | Referred as a recent decision of this Bench supporting the respondents' position (context: deference to Forces' medical opinion). | Used to reinforce the principle that the Forces' medical opinion carries primacy in recruitment fitness assessments. |
| Madhusudhana P.S. Vs. Union of India MANU/DE/0933/2021 (DB) | Referred as a recent decision of this Bench supporting the respondents' position (context: deference to Forces' medical opinion). | Relied upon to support the Court's conclusion that the respondents' medical findings should be accepted absent shown error or doubt. |
| KM. Priyanka Vs. Union of India W.P.(C) 10783/2020 | Held that once doctors of the Forces opine a candidate is not medically fit, opinion of private or other government doctors contrary to that view cannot be accepted. | Applied to decline acceptance of the petitioner's private/government hospital fitness certificates over the RMB's conclusion. |
| Dharmraj Jat Vs. Union of India W.P.(C) 8692/2019 [Special Leave Petition (Civil) No.8543-8544/2020] | Same principle: contrary opinions by private/other government doctors cannot displace the Forces' medical opinion; note that SLP was dismissed on 16 July 2020. | Reinforced the Court's reliance on the respondents' medical decision and on the non-acceptance of contrary fitness certificates. |
| Deepak Kumar Vs. Union of India MANU/DE/0944/2021 (DB) | Held that the opinion of the medical experts of the respondents must prevail unless a doubt is created against such an opinion or an error in the conduct of the medical examination is shown. | The Court applied this principle directly: no doubt or error was demonstrated in the present petition, so the respondents' medical opinion was accepted. |
Court's Reasoning and Analysis
The Court examined the Medical Manual (Guidelines for Recruitment Medical Examination, as revised via MHA OM dated 20 May 2015), in particular Clause 11(1) which provides: "Any evidence of implants in situ anywhere in body will lead to rejection." It was not disputed that the petitioner had undergone surgery on the right breast and had a silicone implant in situ.
The Court observed that (a) the Medical Manual expressly provides that implants lead to rejection, (b) the petitioner had not challenged the Medical Manual or any part of it, and (c) the RMB was stated to have been duly constituted and to have applied the Medical Manual in conducting the review medical examination. The respondents also produced a medical opinion from the General Surgeon, CMO(SG), BSF, who opined that implants would hinder discharge of professional duties, expressly invoking Clause 11(1).
The Court relied on a series of its own and other decisions to the effect that the medical opinion of the Forces' doctors should ordinarily prevail and that contrary opinions of private or other government doctors cannot be accepted unless a doubt is created against the Forces' medical opinion or an error in the medical examination is shown. Applying those principles, the Court found that the petitioner had not shown any such doubt or procedural error in the DME/RME and had not challenged the Medical Manual itself.
Holding and Implications
DISMISSED
The petition was dismissed. The direct effect is that the DME and the RMB/RME findings holding the petitioner medically unfit (on account of implants) stand, and the Court declined to order re-examination or to restrain the respondents from declaring the final recruitment result.
The Court noted that it is within the employer's prerogative to prescribe medical requirements for employment and that, given the Medical Manual's clear provision on implants and the petitioner's failure to challenge the Manual or to demonstrate doubt/error in the medical process, no relief could be granted. The opinion does not purport to lay down a new precedent beyond applying existing authorities that prioritize the Forces' medical opinion unless rebutted by demonstrated doubt or procedural error.
Judge: AMIT BANSAL, J. (with RAJIV SAHAI ENDLAW, J.). Date of Judgment: May 27, 2021.
AMIT BANSAL, J.
1. The petitioner applied for the post of Sub-Inspector in Delhi Police and Central Armed Police Forces (CAPFs) and Assistant Sub-Inspector in Central Industrial Security Force (CISF) in the examination conducted by respondent no. 3 Staff Selection Commission (SSC), notified on 3rd March, 2018. Upon qualifying the written examination in Paper I, the Physical Endurance/Standard Test (PET/PST) and the written examination in Paper II, the petitioner appeared in the Detailed Medical Examination (DME) held on 17th September, 2020. The petitioner was declared unfit vide the result/order dated 18th September, 2020 of the DME on account of WP (C) No.1341/2021 Page 2 of 5 Surgeries of right breast (i) In 2007- Lymphangioma Circumscriptum (No documents available) (ii) In 2019- Breast Reconstruction at Artemis Hospital, Gurgaon (2017). Re-evaluation of patient. She preferred an appeal against the above findings before the Review Medical Board (RMB), which on 3rd December, 2020 declared her unfit on account of having been Operated for Breast Reconstruction in 2019 with Silicone Implant.
2. The present petition under Articles 226 and 227 of the Constitution of India has been filed impugning the result/order dated 18th September, 2020 of the DME and that of the Review Medical Examination (RME) conducted by the RMB dated 3rd December, 2020, both holding the petitioner unfit for the aforesaid posts. The petitioner has further sought a direction from this Court restraining the respondents from declaring the final result of the recruitment for the aforesaid posts and for the respondents to constitute an independent medical board at the Army Hospital (Research and Referral) or in any other government hospital, to re-examine her. The petition first came up before this Court on 2nd February, 2021 when notice was issued to the respondents. Pursuant to that, the respondents filed a counter affidavit and a short affidavit.
3. The counsel for the petitioner has submitted that (i) the Medical Guidelines are silent on medical unfitness on account of Breast Reconstruction or Surgery of Lymphangioma Circumscriptum on right breast; (ii) the petitioner has fulfilled all the criteria laid down by the respondents and that there is no evidence of any malignancy or deformity found in the petitioner; (iii) the RMB has not passed the order in accordance with Medical Guidelines; (iv) the RMB comprising of three doctors did not consist of any specialists in the field the petitioner was declared unfit in. It is WP (C) No.1341/2021 Page 3 of 5 also the case of the petitioner that she got herself examined on 21st September, 2020 and 22nd September, 2020 at two separate hospitals, including one government hospital, both of which declared her fit for the desired posts and that the RMB did not take into consideration the certificates of fitness issued to the petitioner by the aforesaid hospitals.
4. Per contra, the respondents in their counter affidavit have contended that (i) the RMB was duly constituted consisting of 3 expert medical practitioners; (ii) there exists no provision in the Guidelines for Recruitment Medical Examination for recruitment of GOs and NGOs in the CAPFs and AR, as revised vide Office Memorandum (OM) of the MHA dated 20th May, 2015 (Medical Manual), for a candidate to be declared fit for recruitment based on any fitness certificate issued by a medical practitioner; (iii) the DME and RME were held as per the guidelines provided in the Medical Manual; and (iv) the decision of the RMB is final and no appeal is permissible against the said decision. He has relied upon a number of judgments passed by this Court and the Calcutta High Court in support of his contention.
5. The respondents subsequently filed a short affidavit containing a copy of the medical opinion provided by General Surgeon, CMO(SG), Border Security Force (BSF), who has opined that the presence of implants will cause hindrance in the discharge of professional duties by the petitioner. Relying upon Clause 11(1) of the Medical Manual, the General Surgeon, CMO(SG), BSF justified the finding of the DME and the RME holding the petitioner unfit for the desired posts. Clause 11(1) of the Medical Manual provides as under- WP (C) No.1341/2021 Page 4 of 5
11 . MISCELLANEOUS CONDITIONS-
1) Any evidence of implants in situ anywhere in body will lead to rejection.
6. The petitioner has relied upon a certificate dated 21st September, 2020 issued by Consultant Plastic Surgery, Artemis Health Institute, Gurgaon, Haryana to state that despite insertion of the implants, the petitioner can participate in all outdoor activities and trainings. To similar effect is another medical fitness certificate issued by the General Surgeon, Civil Hospital, Rewari, Haryana that has been relied upon by the petitioner. It is not in dispute that the petitioner has had surgeries in her right breast and there was a silicone implant in her breast. Once it is provided in the Medical Manual that implants anywhere in the body will lead to rejection, it is not for this Court to judge whether such condition in the Medical Manual is justified or not. It is also an admitted position that the petitioner has not challenged the Medical Manual or any part of the same.
7. It is the prerogative of the respondents, as the employer to lay down the medical requirements for employment. Unless the petitioner meets the standard prescribed in the Medical Manual, no such direction as sought in the writ petition can be issued. Reference in this regard may be made to recent decisions of this Bench in Ishwar Singh Vs. Union of India MANU/DE/0813/2021 (DB), Arun Kumar Vs. Union of India MANU/DE/1834/2020 (DB) and judgement dated 18th May, 2021 in W.P.(C) 5353/2021 titled Madhusudhana P.S. Vs. Union of India MANU/DE/0933/2021 (DB). It has further been held in decisions of this Court in KM. Priyanka Vs. Union of India W.P.(C) 10783/2020 and WP (C) No.1341/2021 Page 5 of 5 Dharmraj Jat Vs. Union of India W.P.(C) 8692/2019 [Special Leave Petition (Civil) No.8543-8544/2020 preferred against which, was dismissed on 16th July, 2020], copies of which have been filed by the respondents along with their counter affidavit, that once doctors of the Forces, who are well aware of the requirements of the Forces in which the recruited personnel are to work, have formed an opinion that a candidate is not medically fit for recruitment, opinion of private or other government doctors to the contrary cannot be accepted. In fact, this Bench in its judgment dated 21st May, 2021 in W.P.(C) 4662/2021 titled Deepak Kumar Vs. Union of India MANU/DE/0944/2021 (DB) has held that the opinion of the medical experts of the respondents has to prevail unless a doubt is created against such an opinion or any error in the conduct of the medical examination is shown. No such case is made out in the present petition.
8. There is no merit in the petition. Dismissed. AMIT BANSAL, J. RAJIV SAHAI ENDLAW, J. MAY 27, 2021
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