- 1 - WA NO.200127 OF 2023 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS 12TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE K NATARAJAN AND THE HON’BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT APPEAL NO. 200127 OF 2023 BETWEEN: ASFAK HAWALADAR S/O ABBAS ALI HAWALADAR AGE: 24 YEARS, OCC: NIL, R/O. HONAWAD, TQ & DIST: VIJAYAPURA – 586101. …APPELLANT (BY SRI. MAHANTESH PATIL, ADVOCATE) AND: 1. CENTRAL RESERVE POLICE FORCE, (RECRUITMENT BRANCH), BY ITS DIRECTOR GENERAL, EAST BLOCK-07, LEVEL-4, SECTOR-01, R.K. PURAM, NEW DELHI – 110066. 2. CENTRAL RESERVE POLICE FORCE, BENGALURU GROUP CENTRE, CRPF, DODDABALLAPUR ROAD, YELAHANKA, BENGALURU – 560064. 3. REVIEW MEDICAL EXAMINATION BOARD, BY ITS MEMBER, BENGALURU GROUP CENTRE, CRPF, DODDABALLAPUR ROAD, YELAHANKA, BENGALURU – 560064. …RESPONDENTS (BY SRI. SUDHIRSINGH R. VIJAPUR, DSGI) Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - WA NO.200127 OF 2023 THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED: 18.10.2022 IN W.P.NO.200130/2022 PASSED BY THE LEARNED SINGLE JUDGE AND CONSEQUENTLY ALLOW THE SAID WRIT PETITION. THIS WRIT APPEAL HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR “PRONOUNCEMENT OF ORDERS” THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON’BLE MR. JUSTICE VIJAYKUMAR A. PATIL CAV JUDGMENT (PER: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL) This intra Court appeal is filed by challenging the order of the learned Single Judge dated 18.10.2022 passed in W.P.No.200130/2022 (S-RES), wherein the writ petition filed by the appellant was dismissed. 2. Brief facts leading to filing of this appeal are that, the appellant is an applicant for selection of posts of Constable (GD) in Central Armed Police Force (CAPF). The appellant cleared the physical test and thereafter, Detailed Medical Examination (hereinafter referred to as ‘DME’) was - 3 - WA NO.200127 OF 2023 conducted, wherein he was declared as ‘unfit’. The appellant sought for Review Medical Examination (herein after referred to as ‘RME’). In the RME, the appellant was declared as unfit on the ground of Deviated Nasal Septum (herein after referred to as ‘DNS’). The appellant got himself examined from Bowring and Lady Curzon Hospital, Bengaluru and the report indicates that there is no DNS. The appellant challenged the endorsement dated 29.09.2020 before this Court. The learned Single Judge directed the respondents to get the appellant examined by the independent medical board. The respondents challenged the said order. The Co-ordinate Bench modified the order of the learned Single Judge by directing the appellant to appear before the CRPF Medical Board for RME. The respondent No.3 once again declared the appellant as ‘unfit’ as per Annexure-K dated 18.11.2021, which was challenged before the learned Single Judge. The learned Single Judge considering the pleading and rival submissions has recorded the finding that the opinion of CRPF Medical Board is in terms of guidelines prescribed - 4 - WA NO.200127 OF 2023 in the recruitment notification dated 21.07.2018, no fault can be found in such opinion of the experts which is also in compliance with the requirements of the guidelines and dismissed the writ petition. Being aggrieved, the appellant is in appeal. 3. Sri. Mahantesh Patil, learned counsel appearing for the appellant submits that the learned Single Judge has committed grave error in dismissing the writ petition filed by the appellant, without appreciating the guidelines dated 31.05.2021 and clause (10) of the notification dated 21.07.2018. It is submitted that clause 10(f) of the notification is contrary to the guidelines dated 31.05.2021. The guideline – 9(3)(C)(i) provides that, minor DNS can be accepted if there is no marked airway obstruction and in the case of appellant, the DNS found was corrected by surgery dated 24.08.2020 and thereafter, the authority in RME ought to have examined the appellant and issue the medical certificate and without doing so, the medical board is of the opinion that the appellant has undergone corrective surgery for DNS after the date of ‘DME’ on - 5 - WA NO.200127 OF 2023 28.01.2020. Hence, he was declared unfit. Such an opinion of the medical board runs contrary to the notification and guidelines in force, which has not been properly appreciated by the learned Single Judge. 4. It is further submitted that the respondent- authorities have appointed one Sri. Ramagoud Naik who was also suffering from DNS, underwent corrective surgery and in the RME dated 26.09.2020, it is observed that no DNS and found him fit. He submits that the authority cannot discriminate between similarly placed persons in the process of selection. The respondent-authorities ought to have conducted RME on the appellant and thereafter, ought to have considered his candidature for appointment. The opinion of the medical board in RME conducted on the appellant is not on merits but found him unfit on the ground that the appellant has undergone corrective surgery which is contrary to the notification and the guidelines in force. He further adds that the guidelines will prevail over the notification and in support of his contention, he has placed reliance on the decision of the - 6 - WA NO.200127 OF 2023 High Court of Delhi in the case of Pramit Singh vs. Union of India and others1 and in the case of The Employees’ State Insurance Corporation vs. Union of India and others2 and seeks to allow the appeal. 5. Per contra, Sri. Sudhirsingh R. Vijapur, learned Deputy Solicitor General of India (DSGI) supports the order of the learned Single Judge and submits that the standard of physical fitness for the Armed Forces and Police Forces are much higher than the other forces. It is submitted that this Court in W.A.No.200157/2021 has provided an opportunity to the appellant for RME and the experts on examination found that the appellant is unfit and issued the certificate dated 18.11.2021. It is further submitted that the recruitment notification dated 21.07.2018 indicates that if the candidate has undergone surgery in between DME and RME for corrective measures of unfitness will not be accepted and to be considered as 1AIRONLINE 2018 DEL 2816 (W.P.(C) 8752/2018) 2 2022 LiveLaw (SC) 78 - 7 - WA NO.200127 OF 2023 unfit and the authorities considering the same, has held the appellant as unfit. Hence, the order of the learned Single Judge does not call for any interference. 6. We have heard the submissions of the learned counsel for the appellant, learned DSGI for respondent Nos.1 to 3 and meticulously perused the materials available on record. We have given our anxious consideration to the submissions advanced and the materials available on record. 7. The pleading and evidence on record indicate that the appellant has applied for the selection to the post of Constable (GD) in CAPF for the year 2018 as per the notification dated 21.07.2018. The appellant was qualified in the physical fitness test and he was called upon for the DME. After examining the appellant, he was declared as unfit for the reasons – a) knock-knee and b) DNS right side. The appellant sought for RME, the RME was conducted on 29.09.2020 as evident from Annexure-C and in the said examination the appellant was declared as ‘unfit’ on the ground of DNS (moderate DNS with right - 8 - WA NO.200127 OF 2023 hypertrophy of interior turbinate). The appellant challenged the endorsement dated 29.09.2020 in W.P.No.226973/2020, wherein the learned Single Judge disposed of the writ petition with a direction to the respondents to get the appellant examined by an independent medical board preferably of a Government hospital and obtain report and reconsider the candidature of the appellant for the appointment to the post of Constable (GD) CRPF. 8. The order of the learned Single Judge was challenged by the respondent in W.A.No.200157/2021. The Co-ordinate Bench vide order dated 27.10.2021 modified the order of the learned Single Judge by directing the appellant to appear before the CRPF Medical Board, Bengaluru on 16.11.2021 and the respondents were directed to conduct RME on the appellant and take decision in the matter after opinion is given by the CRPF medical report and if the appellant is found fit and eligible for appointment, he shall be appointed and his seniority shall be fixed in the batch he was qualified. - 9 - WA NO.200127 OF 2023 9. The appellant pursuant to the direction of the Co-ordinate Bench referred supra got re-examined before the CRPF Medical Board. The board on examination opined that the candidate has undergone corrective surgery for DNS on 24.08.2020 i.e., after the date of DME on 28.01.2020 and hence declared him unfit. To consider the case of the appellant, it would be useful to refer to the relevant clause 10 of the notification dated 21.07.2018 inviting application, which reads as under: “(10) Duration of fitness for Post-operative cases. If any candidate is operated before medical and comes for medical examination to be conducted by CAPF then minimum period that should be completed after operation at the time of medical (DME/RME as the case may be) for the fitness will be considered as per the details given below: (a) Body surface swelling, DNS, tonsillectomy and nasal polypectomy: 1 month. (b) Hydrocele: 3 months. (c) Tympanoplasty: 4 months. (d) Abdominal/ pelvic surgeries involving opening of peritoneum, repairs of Hernia, varicocele surgeries, surgery fro fistula-in-ano etc: 6 months. - 10 - WA NO.200127 OF 2023 (e) Above time will be considered at the time of medical only and not after the due date of medical. (f) Any surgery conducted between the period of DME & RME for corrective measure of unfitness will not be accepted and be considered as ‘unfit’.” 10. The aforesaid clause of the notification provides a mechanism to examine the candidate undergone surgery for DNS between DME and RME and such examination of the candidate for RME shall be conducted after the date of one month from the surgery. Clause (10)(f) of the aforesaid clause runs contrary to main clause (10) and the Revised Uniform Guidelines for Recruitment Medical Examination in the Central Armed Police Forces and Assam Rifles for GOs and NGOs dated 31.05.2021. The Division Bench of the High Court of Delhi in the case of Pramit Singh vs. Union of India and others referred supra has considered the similar issue by providing an opportunity to the candidate to appear before a Review Medical Board. The relevant paragraphs of the aforesaid judgment are extracted herein below: - 11 - WA NO.200127 OF 2023 4. On the last date of hearing, we had requested Mr. Bhardwaj, learned counsel for the respondents to obtain instructions from the department. Today, learned counsel hands over the "Guidelines Recruitment Medical Examination in Central Armed Police Forces and Assam Rifles" issued by the Government of India, Ministry of Home Affairs (Police Division-II), as revised as on May, 2015. A perusal of the said Guidelines reveals that, Minor Acceptable Defects has been listed in para 7 and sub para (i) thereof states that, mild and moderate DNS with both nasal airways patient may not be rejected. 5. Learned counsel for the petitioner states that while declaring the petitioner as unfit at the time of issuing the impugned memorandum dated 14.04.2018, the respondents had not specified as to whether he was suffering from a mild or moderate DNS and the observation made was limited to mentioning that the petitioner was suffering from DNS. She contends that, in any event, the petitioner had undergone a surgery for correction of DNS on 24.04.2018 and going the very same Guidelines in Para 11 whereof, it has been clarified that the duration for fitness for any post operative cases relating to DNS and Nasal Polypectomy, would be one month, the petitioner ought to have been examined on expiry of one month. She submits that in terms of the aforesaid - 12 - WA NO.200127 OF 2023 Guidelines, the petitioner would have been fit for undergoing a Review Medical Board within one month reckoned from 24.04.2018,, the date of his surgery, i.e., by 23.05.2018 whereas the list of non-selected candidates was declared by the respondents, much later on 16.08.2018. 6. In view of the captioned Guidelines issued by the respondents, we are of the opinion that the respondents ought to have afforded an opportunity to the petitioner to appear before a Review Medical Board after 23.05.2018 i.e. on expiry of one month after he had undergone a surgery for DNS, for examining him qua the grounds mentioned in the impugned memorandum dated 14.04.2018 and if he was not found fit, only then turned down his candidature. In our view, any rejection prior thereto by refusing to grant him an opportunity to appear before the Review Medical Board was not justified or in consonance with the own Guidelines laid down by the respondents.” [Emphasis supplied] 11. In view of the aforesaid observations of the Division Bench of the Delhi High Court in the case of Pramit Singh vs. Union of India and others referred supra, clause in the notification dated 21.07.2018 and the guidelines dated 31.05.2021 issued by the Ministry of - 13 - WA NO.200127 OF 2023 Home Affairs, Government of India, we are of the considered view that, the respondent-authorities have committed an error in not reviewing medically the candidature of the appellant by rejecting his candidature as unfit, solely on the ground that the appellant has undergone corrective surgery. We are of the opinion that the learned Single Judge has not considered the effect of the guidelines and clause of the notification which has been interpreted by the Delhi High Court in the case referred supra. Hence, the order of the learned Single Judge is required to be interfered with. 12. We have also taken note of the guideline-7(i) dated 31.05.2021 which provides that minor acceptable defects i.e., mild and moderate DNS with both nasal airways patient may not be rejected. Similarly, guideline- 9(C) of the said guidelines speaks about considering candidature of the minor DNS. The very guidelines provide a mechanism to consider the candidature of the applicants for minor DNS. The clause (10) of the notification contemplates one month’s time for DME or RME post - 14 - WA NO.200127 OF 2023 surgery and similar clause is found in guideline-11 of the guidelines dated 31.05.2021. In other words, if the candidate has undergone surgery for DNS one month prior to the DME, he is eligible for conducting DME. Similarly, if the candidate has undergone corrective surgery of DNS between DME and RME while conducting RME there must be a gap of one month as per clause (10)(a) of the notification dated 21.07.2018 and guideline-11 of the guidelines dated 31.05.2021. However, clause (10)(f) runs contrary to clause (10) as well as the guidelines dated 31.05.2021 issued by Ministry of Home Affairs, Government of India. 13. We have also noticed that the Co-ordinate Bench of this Court in WA.No.200157/2021 has permitted fresh RME at CRPF Medical Board, Bengaluru. The CRPF Medical Board, Bengaluru is duty bound to conduct RME as per the guidelines dated 31.05.2021 which indicate that RME shall examine candidate specifically for the deficiencies for which the candidate has been declared unfit. In the instance case, no such exercise has been - 15 - WA NO.200127 OF 2023 carried out by the CRPF Medical Board. Hence, it is in violation of guidelines dated 31.05.2021. The interest of justice would be met if the CRPF Medical Board re-assesses the appellant for DNS and provides its opinion as per the guidelines dated 31.05.2021. 14. It is a trite law that the notification for appointment dated 21.07.2018 cannot run contrary to the guidelines dated 31.05.2021, our view gain support from the order of the Supreme Court in the case of The Employees’ State Insurance Corporation vs. Union of India and others referred supra. We also cannot lose sight of the fact that the respondent- authorities have permitted the similarly placed candidate i.e., Ramagoud Naik to participate in RME after undergoing corrective surgery and thereafter he was selected to the post in question, which is evident from the memo dated 28.06.2024 filed along with the documents by the respondent-authorities. Hence, the respondent-authorities cannot now contend that the appellant is unfit without conducting RME as directed by this Court in the earlier - 16 - WA NO.200127 OF 2023 round of litigation, on the ground that he has undergone corrective surgery. In our considered view, the appellant is required to be re-examined once again by the CRPF Medical Board, Bengaluru with regard to DNS, without taking note of the fact that he has undergone corrective surgery. 15. We are of the further opinion that, if the CRPF Medical Board on fresh RME on the appellant found fit, the respondent-authorities are directed to consider the candidature of the appellant for appointment to the post of Constable (GD) CAPF, as per the rules and guidelines. 16. For the aforementioned reasons, we proceed to pass the following: ORDER i) The writ appeal is allowed. ii) The order of the learned Single Judge dated 18.10.2022 passed in WP.No.200130/2022 is set aside. iii) The CRPF Medical Board, Bengaluru is directed to re-examine the appellant with regard to DNS - 17 - WA NO.200127 OF 2023 without taking note of the fact that he has undergone corrective surgery and issue necessary report within a period of one month from the date of receipt of certified copy of this order. iv) The respondents are directed to consider the candidature of the appellant, if he found fit in RME for the appointment to the post of Constable (GD) CAPF, in accordance with law. v) No orders to cost. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE MCR CT: PS