Upendra Ponia vs Union Of India & Ors.

“a)

To set aside the Unfit Certificate of the Review Medical Examination, issued by the Respondents; and/or;

(b)

To re-consider the candidature of the Applicants for the post of Constable (Executive) in its Notice bearing No. F. No. HQ-PP103/15/2023-PP_1 issued by the Respondent and/or;

(c)

To allow the Applicant to be medically examined by an independent medical board in respect of his appointment and if found fit issue an appointment letter as per notice bearing no. F. No. HQ-PPI03/15/2023-PP_1; and/or;

(d)

Alternatively, direct the Respondents for appointment of the Applicants on the basis of the Health/Medical certificate issued by the Govt. Hospital; and/or;

(e)

Pass any other further orders as is deem to be fit and proper in the discharge of justice in favour of the Applicants.”

“7. ANALYSIS :

7.1

Under the Delhi Police Act, Section 4 stipulates that the superintendence of the police force vests in the Administrator. The superintendence of the Delhi police throughout Delhi shall vest in, and be exercisable by the Administrator and any control, direction or supervision exercisable by any officer over any member of the police force shall be exercisable subject to such superintendence.

7.2.

Section 5 provides for Constitution of police force. Subject to the provisions of this Act—

“(a)

the Delhi police shall consist of such number in the several ranks and have such organisation and such powers, functions and duties as the Administrator may, by general or special order, determine; and

(b)

the recruitment to, and the pay, allowances and all other conditions of service of the members of, the Delhi police shall be such as may be prescribed”

7.3

Section 134 contemplates Rules, regulations or orders not invalidated by defect of form or irregularity in procedure. No rule, regulation, order, direction, adjudication, inquiry or notification made or published and no act done under any provision of this Act or any rule or regulation made under this Act, or in substantial conformity with the same, shall be deemed illegal, void, invalid or insufficient by reason of any defect of form or any irregularity of procedure.

7.4

The vision should be upto the following standard:-

(i)

For Constables, Head Constables and Sub-Inspector. Visual acuity (both eyes)

(ii)

6/12 without glasses and shall be free from colour blindness.

7.5

The challenge in present batch of Original Applications is to the insertion of the following lines after the aforesaid word “colour blindness” in clause (a)(i) vide Notification No. F.16/1/2018/HP-I/Estt./5475-5477, dated 22.10.2018).

“and without any correction like wearing glasses or surgery of any kind to improve visual acuity. No relaxation is allowed to any category of candidates on this count”.

7.6

In terms of the guidelines pertaining to the medical examination in Delhi Police, the points to be observed by the Medical Officer in examining candidates for recruitment to the Delhi Police are indicated in the following paragraphs:

(i)

Medical officer will satisfy themselves regarding each candidate on the following points in the order given. If a disqualifying defect is noticed the recruit will be rejected without further examination and appropriate entries made in the Recruits Register. Each eye must have a full field of vision as tested by hand movements.

(Amended clause (a) in sub-clause (i) vide Notification No. F.13/29/2006/HP-I/Estt./1194 to 1197, dated 25.06.2010)

7.7

The medical standards for recruitment in Delhi Police are as under:

“For drivers and Traffic staff visual acuity (both eyes) 6/12 without glasses shall be free from colour blindness.

For Clerical staff and technical hands, distant vision.

Better eye Worse eye Near vision 6 without glasses 6/36 corrected with glasses to 6/9 6/12 J-2 without glasses (both eyes)

Notes.-- In examining the recruits by means of the “Test Dot Card” the following directions should be observed.

(i)

Place the recruit with his back to the light and hold the Test Card perfectly upright in front of him at a measured distance of exactly 10 feet. The light should fall fully on the card.

(ii)

Examine each eye separately. The eye not under trail should be shaded by the hand of an Assistant, who will take care not to press on the eye ball.

(iii)

Expose some of the dots. Not more than 5 or 6 at a time, and desire the recruit to name their number and positions and vary the group frequently to provide against deception.

(iv)

The “Test Dot Card” must be kept perfectly clean.”

7.8.

The Hon’ble Supreme Court in Union of India vs. Satya Prakash Vasisht, 1994 SCC (Supp.) (2) 52, held that the medical standards prescribed in the recruitment advertisement are binding and must prevail, and the same cannot be relaxed or diluted contrary to the terms stipulated therein.

7.9.

Learned counsel for the applicant(s) strongly relied upon the observations of the Hon’ble Supreme Court in Civil Appeal No(s). 1270–1271 of 2022, titled Dalbir etc. vs. Union of India & Ors. etc., decided on 10.05.2022, wherein it was observed that appropriate norms ought to be framed for recruitment in disciplined forces such as RPF, keeping in view candidates who have undergone LASIK surgery, provided they satisfy the requisite post-operative medical standards demonstrating their fitness to discharge duties. It was further contended that no artificial differentiation ought to be made in such cases, as vision correction through LASIK is medically curable and does not impair functional efficiency, and that the duties performed in the Railway Protection Force are comparable to those in the Delhi Police.

7.10

We may state that in Dalbir Singh (supra) it was observed as under:-

“The additional documents filed by the Railway Department shows that the Railway Board constituted a technical Committee consisting of three Ophthalmologists which has submitted a report on 20.04.2022. In this behalf, learned ASG has invited our attention to the said report to submit that in the facts of the case we are concerned with B1. Now the opinion is that Lasik surgery is recommended to be permitted subject to the conditions stipulated therein.

On our query, the learned ASG submits that, given the report now necessary steps will be taken for amendment of the norms and all future advertisements to incorporate the effect of the report within a period of two months from today.That brings us to the issue as to what has to be done insofar as the facts of the present case are concerned. We had already opined that insofar as that the appellants are concerned, they were concerned with the particular aspect of Railway employment which did not require the fine technical work or the operation of heavy machinery. It is in that context that the Committee was appointed. The report would logically have prospective effect in general but the question is whether for these given appellants alone, considering that they have been following up their litigation, it can be so applied. We believe it should be so. We had already taken care of the apprehension of flood gates of litigation by opining that if people have not agitated their rights, we will not open the window for them considering what has happened and going to have prospective effect. We are persuaded to do so also because the advertisement issued in the year 2011 took almost three years to process and the existing norms were brought into place only in the year 2013. We had emphasized the aspect of employment.

Learned ASG submits that since considerable passage of time has occurred, what is the effect of the surgery which may have been done is not known at present. There is some merit in this contention. we thus, consider appropriate that the appellants would be examined by the same Board as constituted for purposes of laying down the norms to determine the suitability of the concerned appellants for the job. The process to be completed within a period of two months from today. The appeals stand allowed to the limited extent aforesaid.The benefit of this order will be available onlyto the five appellants on whose behalf notice was issued.”

7.11.

In State of Madras vs V.G Row ( 1952 SCR 597), the Hon’ble Supreme Court observed as under:

“In considering the reasonableness of laws imposing restrictions on fundamental right, both the substantive and procedural aspects of the impunged law should be examined from the point of view of reasonableness and the test of reasonableness, wherever prescribed, should be applied to each individual statute impunged and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases.

The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.”

7.12

In Jyoti Pershad v. The Administrator for the Union Territory of Delhi, 1962 (2) SCR 125, the Apex Court held as under:

“We shall proceed to consider these points in that order. The first ground alleged is that s. 19 of the Act is constitutionally invalid as violative of the equal protection of the laws conferred under Art. 14 of the Constitution, in that an unguided and arbitrary discretion is vested in the "competent authority".

The import, content, and scope of Art. 14 of the Constitution has been elaborately considered and explained in numerous decisions of this Court and it is, therefore, unnecessary for us to embark on any fresh investigation of the topic, but it would be sufficient to summarise the principles, or rather the rules of guidance, for the interpretation of the Article which have already been established, and then consider the application of those rules to the provisions of the enactment now impugned. It is only necessary to add that the decisions of this Court laying down the proper construction of Art. 14 rendered up to 1959 have been summarised in the form of 5 propositions by Das C. J. in Ramakrishna Dalmia v. Justice Tendolkar (1959] S.C.R. 279), but we are making a summary on slightly different lines, more relevant to the enquiry regarding the provision with which we are concerned in the present case.

(l)

If the statute itself or the rule made under it applies unequally to persons or things similarly situated, it would be an instance of a direct violation of the Constitutional guarantee and the provision of the statute or the rule in question would have to be struck down.

(2)

The enactment or the rule might not, in itself, enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi-judicial capacity, by a legislation which does not lay down any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary powers enabling it to discriminate.

"The legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct." [Harishankar Bagla v. The State of Madhya Pradesh [1955] I S.C.R. 380, 388.

"No rules have been framed and no directions given on these matters to regulate or guide the discretion of the licensing officer. Practically the Order commits to the unrestrained will of a single individual the power to grant, withhold or·cancel licences in any way he chooses and there is nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same". [Messrs. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh [1954] s.c.R. 803, 813.

In such circumstances, the very provision of the law which enables or permits the authority to discriminate offends the guarantee of equal protection for afforded by Art. 14. Possibly the best instance of this type of case is afforded by the legislation under consideration in The State of West Bengal v. Anwar Ali Sarkar('), the ratio underlying which was thus explained in Kathi Raning Rawat v. The State of Saurashtra:

"If it depends entirely upon the pleasure of the state government to make any classification, it likes, without any guiding principle at all, it cannot certainly be a proper classification, which requires that a reasonable relation must exist between the classification and the objective that the legislation has in view. On the other hand, if the legislature indicates a definite objective and the discretion has been vested in the State Government as a means of achieving that object, the law itself cannot be held to be discriminatory, though the action of the State Government may be condemned. if it offends against the equal protection clause by making an arbitrary selection."

(3)

It is manifest that the above rule would not apply to cases where the legislature lays down the policy and indicat€s the rule or the line of action which should serve as a guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power, no question of violation of Art. 14 could arise, unless it be that the rules themselves or the policy indicated lay down different rules to be applied to persons or things similarly situated. Even where such is not the case, there might be a transgression by the authority of the limits laid down or an abuse of power, but the actual order would bo set aside in appropriate proceedings not so much on the ground of a violation of Art. 14, but as really being beyond its power.

(4)

It is,however, not essential for the legislation to comply with the ruleto equal protection, that the rule for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself.

"The Saurashtra case would seem to lay down the principle that if the impugned legislation indicates the policy which inspired it and the object which it seeks does not to itself attain, make the a mere complete fact and that precise the legislation classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the standard indicated or the underlying policy and object disclosed is not a sufficient ground for condemning it as arbitrary and, therefore, obnoxious to article 14." [Kedar Nath Bajoria v. The State of West Bengal

"So long as the policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply." [Harishankar Bagla and another v. The State of Madhya Pradesh].

Such guidance may thus be obtained from or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well-known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits, Kathi Raning Rawat v. The State of Saurashtra (') being an instance where the guidance was gathered in the manner above indicated, (b) or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved by the enactment.

"The policy underlying the Order is to regulate the transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at. fair price to all. The grant or refusal of a permit is thus to be governed by this policy, and the discretion given to the Textile Commissioner is to be exercised in such away as to effectuate this policy. The conferrmentof such a discretion cannot be called invalid, and if there is an abuse of the power, there is ample power.in the Courts to undo the mischief."

“35.

It cannot be gainsaid that the factors of “when”, “which”, “what”, “who” and “how” that are associated with a recruitment/selection process is the prerogative of the recruiting authority and the selectors; however, at the same time, the process has to be conducted consistent with statutory provisions governing the same, if any, as well as principles of absolute fairness and complete non-arbitrariness. Though it is true that the law does not postulate a fetter on the authority of the employer-State and it is within the domain of the Government when to initiate a process of recruitment for public employment, either according to recruitment rules or even in the absence thereof, it is for the Government of the day to decide in which manner it proposes to conduct selection, what would be the various stages the candidates aspiring for appointment have to pass through in order to be placed in the select list, who would be the selectors, and how weightage is to be given to each of the testing methods, a great deal of credence is lent to a process if it is fairly and transparently conducted in accordance with rules, whatever be its source, without the slightest hint of any bias or favouritism or nepotism. Normally, it is not for the courts to interfere unless the process smacks of mala fides. However, the right to be considered for public employment being a Fundamental Right, it would be safe and prudent to have recruitment rules to govern the process of selection so that the best possible talent is appointed in public service. Obviously, assessing the merit of the candidates aspiring for public employment on the basis of a prescribed standard would not only provide a level playing field for each of them, the excellence of any institution to which the appointment is to be made would depend directly on the proficiency of its members/staff and that would, in turn, depend on the quality and merit of those who offer themselves for selection and ultimately get selected, necessitating the selection to be conducted without any hidden taint or masked mala fides.”

“(a)

Such candidates who undergo LASIK eye surgery are required to have a compulsory eye check-up every year.

(b)

They are not able to face the heavy glare of light, especially during night hours.

(c)

Before declaring such candidates fit, the following tests should be conducted to check the fitness of their vision :-

(i)

Contrast sensitivity

(ii)

Dim light vision (Mesopic Vision)

(iii)

Glare acuity

Whereas the executive cadre of the Delhi Police is required to perform duties in extreme weather conditions during the day as well as at night.”

Key Medical Categories and Standards under Railway’s reads :

 A-1 (Strictest): For operational staff (e.g., Loco Pilot). Requires 6/6 distance vision without glasses, no color blindness, and excellent physical fitness.

 A-2: 6/9, 6/9 distance vision without glasses; near vision 0.6, 0.6.

 A-3: 6/9, 6/9 distance vision with or without glasses (power 2D).

 B-1: 6/9, 6/12 distance vision with or without glasses (power 4D), passed color/field/night vision tests.

 B-2: 6/9, 6/12 distance vision with or without glasses (power 4D).

 C-1: 6/12, 6/18 distance vision with or without glasses.

 C-2: 6/12 distance vision (one eye may be nil)

Chapter V of Railway Manual Clause 503. deals with Vision tests:-

(a)

Classification of staff:- for the purposes of visual acuity standards, the various gazetted services on Railways should be divided into two categories as follows:-

(1) Technical services:-

(i)

Railway Engineering Services (Civil, Electrical, Signal, and Mechanical)

(ii)

Indian Railway Traffic Service. (iii) Special Class Railway Apprentices.

(iv)

Posts in the Marine Establishments. (v) Indian Railway Medical Service

Note: Even though Indian Railway Medical Service has been declared as 'Technical', the standard of medical examination applicable for candidates for recruitment to this service shall not be the same as applicable to the technical service on Railways. The candidates will be medically examined in accordance with the standards prescribed for technical services of Central Govt.(i.e other than the technical services under the Ministry of Railways) as laid down in the 'Hand book on Medical Examination' issued by the Ministry of Health And Family Welfare as amended from time to time. ( Bd.'s No 82/H/5/9 dt. 21/08/1982 and dt. 15/06/1984)

(2) Non technical services:-

(i)

Indian Railway Accounts Service.

(ii)

Indian Railway Stores Service.

(iii)

Railway Protection Force.

(iv)

Railway Board Secretariat Services, class I and class II.

(v)

Chemists and Metallurgists.

(vi)

All other class I and class II services on the Railways which are not connected with the train working or use of trolleys.”

“"There is no exhaustive definition of the expression ’Police Officer’ in any of our statutes........... In the absence of a statutory definition, and, apart from all authority, one would be tempted to say that a police officer is a person whom any statute or other provision of law calls such or, on whom it confers all or substantially all the powers and imposes the duties of a police officer. If he is expressly called a police officer there is no difficulty whatsoever. If he is not so called then the next step is to ask : what does the law require him to do ? What are the duties imposed on him ? and what are the powers conferred on him ? If these are substantially those of a police officer there need be no qualms in regarding him as one. If his powers and duties are confined to a particular extent of territory or to a particular subject matter he will be a police officer only in respect of that territory or that subject-matter. The material thing to consider would be not the name given to him, nor the colour of the uniform he is required to wear, but his functions, powers and duties. A police officer does not cease to be such merely because he is put into a white, khadder uniform instead of one in khaki drill; a medicine will be just the same whether it is packaged in a glass jar or a plastic container,”

"The department of government which is concerned with the maintenance of public order and safety, and the enforcement of the law; the, extent of its functions varying greatly in different countries and at different periods. The civil force to which is entrusted the duty of maintaining public order, enforcing regulations for the prevention and punishment of breaches of the law, and detecting crime; construed as plural, the members of a police, force; the constabulary of a locality."

Shortly, stated, the main duties of the police are the prevention and detection of crimes. A police officer appointed under the Police Act of 1861 has such powers and duties under the Code of Criminal Procedure, but they are not confined only to such police officers. As the State’s power and duties increased manifold, acts which were at one time considered to be innocuous and even praiseworthy have become offences, and the police power of the State gradually began to operate, on different subjects. Various Acts dealing with Customs, Excise Prohibition.. Forest, Taxes etc., came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime ? If lie does, he will be a police officer.” (see: State of Punjab vs. Barkat Ram, (1962 SCR (3) 338) at page 357.

“PUBLIC NOTICE

The Delhi Police intend to revise/amend the following Recruitment Rules for the following posts in Delhi Police(Appointment & Recruitment) Rules, 1980:-

Rule	Name of Post
Rule 9	Constable (Exe.)
Rule 14(c)	Women Constable (Exe.)
Rule 7	Sub-Inspector (Exe.) – Male
Rule 14(a)	Women Sub-Inspector (Exe.)
Rule 10	HC (Min.)
Rule 10	ASI (Steno.)
Rule 17-B (XVIII)	HC (Store Clerk)

The amendments will be made with the approval of the Hon’ble LG, Delhi. If any one has any objection in any clause of the RR, he/she may submit his representation alongwith justification & documentary proof to the undersigned by 15.02.2018, failing which it will be presumed that no one has objection in this regard.

(R.A. SANJEEV)

ADDL.COMMISSIONER OF POLICE, ESTABLISHMENT, DELHI”

context of modern conditions and the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provision for them. The Legislature therefore is forced to leave the authorities created by it an ample discretion limited, however, by the guidance afforded by the Act. This is the ratio of delegated legislation, and is a process which has come to stay, and which one may be permitted to observe is not without its advantages. So long therefore as the Legislature indicates, in the operative provisions of the statute with certainty the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law.”

8. CONCLUSION :

8.1.

In view of the aforesaid analysis, we do not find any merit in the present batch of Original Applications. The same are accordingly dismissed.

8.2.

Pending M.A.(s), if any, shall stand disposed of. No costs. ”