Supreme Court: In an appeal challenging BSF’s decision of declaring the appellant unfit for the post of Sub-Inspector General Duty (GD) through Limited Departmental Competitive Examination (‘LDCE’), alleging that he was earlier declared medically fit for the same post, the Division Bench of Division Bench of Abhay S. Oka and Pankaj Mithal*, JJ. clarified that earlier, he had undergone routine annual medical check-up as a constable and was never declared medically fit in the process of selection for the post. Therefore, the Court dismissed the instant appeal.
The appellant was working as a constable with the Border Security Force (‘BSF’) and applied for the post of Sub-Inspector General Duty (GD) through Limited Departmental Competitive Examination (‘LDCE’) 2018-19. He was declared medically unfit in the exam and the said order remained undisturbed in the review medical examination by the Board consisting of three doctors.
The appellant challenged the BSF’s action declaring him medically unfit for the said post through a writ petition before the Delhi High Court, seeking to quash the medical result dated 27-02-2020 and a direction to BSF to treat him as medically fit for the said post. The said writ petition was dismissed by the High Court on 24-09-2020 which led him to proceed with the instant appeal.
It was contended on behalf of the appellant that he was found medically fit as on 16-12-2019, and that BSF was not competent to subsequently declare him unfit on 23-12-2019. Even after undergoing a small surgery wherein, he was found medically fit for the post, but the review medical examination refused to declare him as medically fit for the post of Sub-Inspector (GD) on 27-02-2020.
The appellant was serving as a Constable (GD) with BSF since 4-04-2012. After 8 years of his duty, an advertisement was issued by 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 eligibility as per the advertisement required the candidates with:
upper age limit of 32 years on last date of application for appearing in LDCE;
complete 4 years of service including basic training;
graduation with unblemished clean record of entire service until the issuance of offer of appointment;
fulfil the physical standards laid down; and
qualify SHAPE-I medical category.
The five stages of the scheme of examination included verification of service records, OMR based written examination, physical measurements (‘PST’), physical efficiency test (‘PET’) and then a detailed medical examination, wherein, the candidates must be declared medically fit for the post. It was pointed out that 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, and that declaration of a candidate in medical category SHAPE-I was insufficient for treating him as medically fit for the post.
The appellant was issued a call letter on 16-11-2019 indicating that the appellant was called for stage-V detailed medical examination on 23-12-2019 wherein, he was not found to be medically fit due to suffering from Right Sided Varicocele, Varicose Vein left calf, Tachycardia pulse rate 110/min (normal range 60-110/min), noticing the reasons that he was operated upon on 28-12-2019. The decision was upheld by the review medical examination by the board of three members.
While it was contended on behalf of the appellant that once he was declared medically fit, BSF could not review the matter to take a contrary decision declaring him medically fit, the Court regarded such a submission as “ex-facie bereft of merit” stating that the appellant was never declared medically fit for the post of Sub-Inspector (GD) through LDCE. The Court explained that although the appellant had undergone routine annual medical check-up as a constable to be declared in medical category SHAPE-I, being an eligibility condition for the said post, he was never declared medically fit in the process of selection for the post. That although he qualified stage-I to stage-IV of the examination process, but never qualified stage-V of detailed medical examination. It was contended that he was declared unfit and the review medical examination by 3-members board also upheld such decision despite the appellant having undergone a minor surgery for curing the said medical deficiencies.
The Court pointed out that the medical examination conducted on 16-12-1999 was a routine annual examination which declared him in medical category SHAPE-I and was not a part of the examination process for selection to the post. Thus, the appellant never successfully qualified for all the five stages of examination as per the advertisement for selection to the said post through LDCE.
Regarding contention that the appointment through LDCE was like a fast-track promotion and not a fresh appointment, and that recruitment rules and guidelines applicable to the normal mode of promotion would apply and no other medical standards, the Court agreed that it was an accelerated promotion, but commented that it cannot be equated with normal mode of promotion, as was evident from the advertisement that it was not a normal promotion but selection to a higher post among eligible candidates working on lower post. Therefore, the Court rejected the submission that normal rules of promotion or medical examination ought to have been applied.
The Court clarified that the scheme of selection in the advertisement required clearing the examination in all five stages including detailed medical examination and possessing medical category SHAPE-I. The Court commented that “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.”
The Court found no substance in the instant appeal and dismissed the same while expressing that the declaration of the appellant being ‘medically unfit’ was not contrary to the earlier reports since he was not declared medically fit during the process of examination for selection to the said post through LDCE. The Court therefore upheld the judgment and order of the High Court dismissing the writ petition upholding the Medical Board’s declaration.
[Pavnesh Kumar v. Union of India, 2023 SCC OnLine SC 1583, decided on 28-11-2023]
Judgment authored by: Justice Pankaj Mithal
Advocates who appeared in this case :
For Appellant: Advocate on Record Alakh Alok Srivastava, Advocate Chandan Kumar Singh
For Respondent: Advocate Nachiketa Joshi, Advocate Narayan Dev Parashar, Advocate Shiv Mangal Sharma, Advocate Balendu Shekhar, Advocate Vinayak Sharma, Advocate on Record Arvind Kumar Sharma