Sunil Verma vs Union Of India And 3 Ors

1) Heard Mr. N. Hasan, learned counsel for the petitioner and Mr. C.K.S. Baruah, learned CGC appearing for all the respondents.

2) The petitioner had participated in the recruitment examination held in the year 2018 for the post of Constables (General Duty) in Central Armed

Police Forces (CAPFs for short), National Investigating Agency (NIA for short) and Secretariat Security Force (SSF for short) and Rifleman

(General Duty) in Assam Rifles (AR for short). The petitioner was successful in the written examination and also qualified the Physical Standard Test

(PST for short) and Physical Efficiency Test (PET for short). However, the petitioner failed in the Detailed Medical Examination (DME for short)

due to defective distant vision. In order to prefer an appeal against the finding against him in the DME, the petitioner got himself examined at Assam

Medical College, Dibrugarh on 10.02.2020, and the vision in both eyes was found to be within the normal limit of 6/6 and 6/6 in both eyes. Accordingly,

a Medical Fitness Certificate was issued by the Medical Officer holding the designation of Refractionist and attested by the Professor in the

Department of Ophthalmology, A.M.C., Dibrugarh. Accordingly, the petitioner had applied for a review medical examination and accordingly, in the

Review Medical Examination held on 18.09.2020, the petitioner was declared to be having defective distant vision of 6/12. The petitioner has projected

that he had got his eye examined at the Gauhati Medical College and Hospital (GMC&H) on 19.09.2020 and the Specialist Medical Officer of

GMC&H had found the vision of the petitioner to be normal. Thus, on being declared unfit by the Review Medical Board, the aggrieved petitioner has

approached this Court by filing this writ petition under Article 226 of the Constitution of India.

3) The learned counsel for the petitioner has referred to the medical opinion obtained by the petitioner prior to facing the first medical examination,

after first medical examination and post second review medical examination and it is submitted that the petitioner has all throughout been found to be

having perfect vision of 6/6 in both eyes and that the Medical Fitness Certificate issued by the Assam Medical College, Dibrugarh on 10.02.2020 was

in the prescribed Form No. 3 of CAPFs Constable (GD) -2018 with photograph of the petitioner duly attested by the Medical Eye Specialist examining

the petitioner on 10.02.2020 and that the said Specialist was holding the Designation of Refractionist and it was mentioned in the form that the

petitioner was declared unfit by the Medical Officer CAPFs due to “defective distant vision B/E (6/9) B/Lâ€, and that conscious of the previous

opinion, the specialist doctor in AMC, Dibrugarh had certified as follows â€" “In my opinion this is a error of judgment due to following reasons -

other reason not pertaining to visual acuity. All eye findings are within normal limit (6/6 6/6).†Therefore, it is submitted that the vision of the

petitioner be re-examined/ re-tested in any hospital or before any Medical Board which this Court may deem fit and proper. In support of his

submissions, the learned counsel for the petitioner has referred to the case of Vikash Singh Vs. Union of India & Ors., S.B. Civil W.P. No.

10612/2020 decided by the Rajasthan High Court on 09.03.2021.

4) The respondents have contested the writ petition by filing their joint affidavit-in-opposition. It is the stand of the respondents that the decision of the

Review Medical Board was final and that no appeal would be entertained in respect of the finding of the second medical, i.e. Review Medical

Examination. It has been stated that in order to be recruited in CAPFs and Assam Rifles, a candidate has to be found fit by a duly constituted Medical

Board of the CAPFs and Assam Rifles, which carries out medical examination as per the guidelines issued by the Staff Selection Commission on

21.07.2018 at Para 9.IV and Ministry of Home Affairs vide their OM No. A.VI-1/2014-Rectt. (SSB) dated 20.05.2015 Para 9.1., having regard to the

requirement of medical fitness of the candidate for strenuous training and service conditions of CAPFs and Assam Rifles. In terms of the order

passed by the Court on 16.07.2021, the AC (Law), on behalf of IG BSF, Ftr HQr Guwahati has provided written instructions to the learned CGC

regarding the names, qualifications, and registration number of detailed medical officers for Review Medical Examination. The instructions so received

have been placed on record. The learned CGC has submitted that Review Medical Examination was conducted by a team of three doctors out of

which Member-I was “Comdt. (Specialist) Officer Grade-1 (Eye Ophthalmologist), who was holding Diploma in Ophthalmology.â€​

5) There is no doubt that as per the employment advertisement published in Employment News/ Rozgar Samachar dated 21.07.2018, bearing notice

under F.No. 3/2/2017-P&P-1 (Annexure-1 to the writ petition), Clause no. 9E thereof relates to review medical examination, which provides that the

decision of the CAPFs review medical board will be final.

6) On examining the materials on record, it is seen that in medical term, “visual acuity†refers to the ability to discern the shapes and details of the

things that one sees. However, it appears that “visual acuity†is just one factor in one’s overall vision. Other factors include colour vision,

peripheral vision and depth perception. Visual acuity test is an eye examination that checks how well you see the details of a letter or symbol from a

specific distance. Visual acuity test is stated to be only one part of a comprehensive eye examination, which can be performed by (i) an optometrist,

(ii) an ophthalmologist, (iii) an optician, (iv) a technician, (v) a nurse.

7) At this stage, three relevant medical certificates are initially being considered, (i) the first Medical Examination Report dated 04.02.2020 (ii) the

Medical Certificate issued by the AMC, Dibrugarh dated 10.02.2020, and (iii) the Review Medical Examination Report dated 18.09.2020. In the first

medical examination report, the opinion of the doctors was “Defective distant vision 6/9 B/Lâ€. Thereafter in AMC, Dibrugarh, the petitioner was

examined by a Refractionist, who had certified as follows â€" “In my opinion this is an error of judgment due to following reasons - other reason

not pertaining to visual acuity.

All eye findings are within normal limit (6/6 6/6).†The said certificate is seen to be attested by Professor, Department of Ophthalmology, AMC,

Dibrugarh. The Specialist Medical Officer who had examined the petitioner in AMC, Dibrugarh was holding the designation of Refractionist, but

holding a degree of MBBS., MS. In the Review Medical Examination Report, the reason for medical unfitness was stated to be “Defective distant

vision 6/6 (B/L)â€, the Brief of Review Medical Examination and finding thereof is stated to be “VA 6/12 right; and VA 6/12 leftâ€, and final

opinion was given as (a) unfit and (b) unfit on account of “Defective distant vision 6/12 both eyes.

8) Notwithstanding that the Specialist Medical Officer who had examined the petitioner in AMC, Dibrugarh was holding a degree of MBBS., MS, but

he was holding the designation of “Refractionistâ€. As per standard medical healthcare industry, a Refractionist is generally known as an

“Ophthalmic Assistant†and the brief job description of a Refractionist is to provide vision care and refraction under the supervision of an

ophthalmologist. Their job generally requires them to (i) assist with taking patient histories, (ii) performing diagnostic tests and procedures, (iii) measure

visual acuity, (iv) assess visual field, (v) assess refractive status, (vi) dispensing optical prescription, and (vii) maintaining records. On a cursory

perusal of the course details for “Refractionist†in Sankara Nethralaya Academy, it is seen that the said academy is offering 2 (two) year diploma

in Refractionist Course after 10+2 level with minimum of 50% marks in PCMB (i.e. Physics, Chemistry, Mathematics and Biology). The two year

course includes 18 months of study and 6 months of training in Sankara Nethralaya and its Branch Units. However, Member-1 of the Review Medical

Board which had examined the petitioner on 10.02.2020 is an ophthalmologist. The Court hastens to add herein that the purpose of this analysis of the

qualification and job of the Refractionist is only to understand the scope of their work and as such the opinion expressed herein is not to be construed

as if the Court has made any comment on the talent of the Refractionist vis-Ã -vis an Ophthalmologist or to find out who is superior to the other.

9) In the medical examination report dated 10.02.2020, issued by the AMC, Dibrugarh, the use of words “other reason not pertaining to visual

acuity†in the certificate would only rule out visual acuity, but would not be sufficient to rule out any other factors which might have been the cause

for the Review Medical Board to return a finding that the petitioner was found unfit on account of “VA 6/12 right; and VA 6/12 leftâ€. The

medical examination certificate dated 10.02.2020 issued by AMC, Dibrugarh is not sufficient to rule out that “other reason not pertaining to visual

acuityâ€, may still lead to defective distant vision despite visual acuity in right eye and left eye being 6/6. Thus, though it appears that there are

conflicting opinions of the vision acuity of the petitioner, which was 6/9 in initial medical rejection certificate, and it was 6/6 in the certificate issued by

the AMC, Dibrugarh, and yet it is mentioned as 6/12 in both the eyes in the Review Medical Examination Report.

10) It is seen from the Guidelines for Recruitment Medical Examination in CAPFs and Assam Rifles, Revised guidelines as on May, 2015, that the

details of procedures that is required to be carried out while recruiting personnel in the CAPFs and Assam Rifles has been mentioned therein.

Moreover, as per documents annexed to the affidavit-in- opposition, it is seen that vide notification bearing F. No. 1-45024/1/2008-Pers.II dated

18.05.2012, issued by the Government of India, Ministry of Home Affairs, Police-II Division, Policy Guidelines was set-up and issued for the CAPFs

and Assam Rifles personnel, which is of 33 pages. In this writ petition, there is nothing on record to show that by following the standards, procedures

and equipments mentioned in the said Policy Guidelines, the opinion rendered by the Review Medical Board could not have been reached. Moreover,

in one of the preceding paragraphs, the Court has taken note of the nature of job profile of a Refractionist and therefore, taking note of the fact that

the Medical Specialist involved in the recruitment process of CAPFs and Assam Rifles are guided by tailor-made guidelines taking note of the nature

of duty required to be performed by the personnel of the CAPFs and Assam Rifles the Court is unable to return a finding that the medical opinion of

the Review Medical Board is fallacious and to direct the respondents to undertake a fresh review medical examination of the petitioner.

11) In the totality of the facts and circumstances, taking note of the fact that the Review Medical Examination Report dated 18.09.2020, was by a

Medical Board consisting of three Doctors, out of which the Member-I is holding degree of MBBS with Diploma in Ophthalmology, and at the

relevant time serving at Assam Rifles Composite Hospital, Dimapur, Nagaland, is it is not possible for the Court to arrive at a finding that in view of (i)

the medical examination report dated 10.02.2020 by the Assam Medical College, Dibrugarh, and (ii) the medical certificate dated 19.09.2020, issued

by the O.P.D., GMC&H, the Review Medical Examination Report was liable to be discarded and/or rejected and to direct a fresh Review Medical

Examination of the petitioner to be done.

12) Moreover, from the Medical Certificate dated 19.09.2020, issued by the O.P.D., GMC&H, it does not contain any endorsement that the

concerned medical specialist had taken note of (i) the initial Medical Examination Report dated 04.02.2020, declaring the petitioner to be unfit, (ii) the

Medical Examination Report dated 10.02.2020 issued by AMC, Dibrugarh, and (iii) the Review Medical Board Examination report dated 18.09.2020,

declaring the petitioner to be unfit had been considered.

13) In light of the discussions above, the petitioner is not found entitled for a direction to the respondents to conduct another review medical

examination of the petitioner.

14) It would be appropriate to deal with the case of Vikash Singh (supra), cited by the learned counsel for the petitioner. In the said case, by an

interim order dated 06.11.2020 had directed the petitioner therein to deposit a sum of Rs.10,000/- by way of a bank draft in favour of the Legal

Services Authority (Jodhpur) before the Registrar (Judicial), Rajasthan High Court, Jodhpur and on such deposit, the Director, AIIMS, Jodhpur was

directed to constitute a Medical Board consisting of two ophthalmologist for examining the petitioner and the AIIMS, Jodhpur had given a report that

the petitioner’s vision was normal. However, the said report had to be ignored on account of report that one of the doctors who had given the

report was accused of irregularities in the medical examination and therefore, by ignoring the report by the AIIMS, Jodhpur, the Rajasthan High Court

was the opinion that the report of the Review Medical Examination of the petitioner be ignored and on such fact situation, the petitioner was held to be

entitled to a fresh Review Medical Board for which directions were issued. The present case is distinguishable on facts for which the said case would

not help the petitioner in any way. It is seen from the interim order dated 06.11.2020 passed in the said writ petition, as quoted in the said cited case,

that prima facie satisfaction was not recorded that the medical opinion expressed by the Review Medical Board was not acceptable. Moreover, from

the said cited case, it does not appear that while doing re-examination of the petitioner therein, the Doctors constituting the Medical Team on the

strength of the interim order passed by the Rajasthan High Court were conscious of the conflicting medical opinion. It also does not appear from the

said order that while doing medical check-up standards and procedures similar to the prescribed (i) Guidelines for recruitment medical examination in

CAPFs and Assam Rifles as per Revised Guidelines as on May, 2015, and (ii) Policy Guidelines set-up and issued for the CAPFs and Assam Rifles

personnel notification bearing F. No. 1-45024/1/2008-Pers.II dated 18.05.2012, issued by the Government of India, Ministry of Home Affairs, Police-II

Division, was adhered to.

15) Thus, the writ petition is found to be without any merit, and it is, therefore, dismissed. No cost.