1. The instant Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, aggrieved by the decision of the Medical Board by which she has been declared medically unfit on the ground of refractive surgery as a result applicant has been excluded from the selection process. It is submitted by the applicant that the said action of the respondents is arbitrary and illegal.

2. Brief facts:

2.1 The Staff Selection Commission (SSC) had issued notice for recruitment of Sub Inspectors (SIs) in Delhi Police, CAPFs and Assistant Sub Inspectors (ASIs) in CISF in April, 2017.

2.2 The applicant being eligible applied for the said posts as a female candidate. The candidates were required to give preferences for the posts indicated in the advertisement. She gave first preference as SI in Delhi Police. On scrutiny, her application was found correct and accordingly she was allotted roll no. 2201101260 to appear in the examination.

2.3 The SSC conducted a computer based Paper-I examination wherein applicant appeared and performed well. The result of Paper-I was declared by the SSC on 06.09.2017 where she scored 132.75 marks out of 200 marks. The applicant being one of the qualified candidates was called for PET/PST on 03.11.2017 wherein also she was declared qualified. The Paper-II examination was held on 15.02.2017 for those who qualified in PET/PST. Applicant appeared and scored 180 out of 200 marks. Based on the cutoff fixed by the Commission, i.e., Paper-I Paper-II) candidates were called for medical examination. The cut-off marks fixed for female candidates in UR category was 264.75 out of 400 marks and the applicant having scored 312.75 out of 400 marks was called for medical examination.

2.4 She was medically examined but declared unfit for three reasons, viz., defective distance vision, tachycardia and hypertension.

2.5 The applicant was advised to file an appeal for review of medical examination after obtaining necessary medical certificates from the Medical Practitioner. Accordingly, she presented herself before the concerned Medical Officers, Civil Hospital, Bhiwani, where the concerned doctors examined and found her fit for the post. On the basis of said medical certificate, applicant preferred appeal for review of the medical examination. She was called for review of medical examination on 09.08.2018. She appeared in review medical examination on 9th & 10th August, 2018 and was found fit in respect of tachycardia and hypertension but the Review Medical Board still declared her unfit because of the refractive surgery, despite her having 6/6 vision in both the eyes after LASIK Surgery. The applicant has been declared medically unfit on the ground that she had undergone vision correction surgery (refractive surgery). It is submitted that such a defect in vision is curable by way of LASIK Surgery. The advertisement/employment notification specifies the medical standard in para-11 (C) and the following is laid down with respect to eye-sight:

"The minimum distant vision should be 6/6 and 6/9 of two eyes without correction i.e. without wearing of glasses".
2.6 It is further submitted that still LASIK surgery was not specified as a hurdle in the medical fitness of a candidate. In support of his plea, the applicant has relied upon a decision of the Hon'ble High Court of Delhi dated 29.05.2012 in CWP No. 3196/2012 - Ms. Sreeja K.V. Union of India and another, wherein the Hon'ble High Court of Delhi has clearly held that LASIK Surgery cannot be a ground for medical disqualification of a candidate to a public post.

2.7 It is also submitted that the issue raised in the instant OA is no more res integra as this Tribunal in a bunch of OAs, lead case being OA No. 145/2014 - Renu Hooda v. Staff Selection Commission and Anr., vide its order dated 27.02.2015 wherein it has been that in the absence of any specific exclusion under the medical standard for eye-sight of candidates who had undergone LASIK Surgery, the applicants therein cannot be deprived of employment on the basis of the opinion of the Review Medical Board.

2.8 The applicant further submitted that the decisions of the Hon'ble High Court of Delhi in Ms. Sreeja K. (supra) and of this Tribunal in Renu Hooda (supra) are, on all fours, applicable to the facts of the present case and the OA is required to be allowed.

2.9 It is submitted that the selection process is still in progress and the matter being urgent in nature, left with no alternative except to approach this Tribunal, the applicant has filed the instant OA, praying for the following reliefs:

"i) Quash and set aside the impugned medical report of Medical Board dated 23/4/2018 and medical reports of Review Medical Board dated 9/8/2018 & 11/8/2018 in respect of applicant (placed at Annexure A-1 & A-2) and direct the respondent to treat the applicant as medically fit; and

ii) direct the respondents to process the candidature of the applicant on the basis of pure merit to determine her selection and if found fit to process her candidature for the post in question disregarding the medical opinion about the applicant's eye-sight with all consequential benefits; and

iii) pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."

3. Pursuant to the notices issued by the Tribunal the respondents entered appearance and filed their respective reply.

3.1. The respondent no. 1 (SSC) in their reply have submitted that applicant is a candidate of SI in Delhi Police, CAPFs and ASI in CISF Examination 2017. The notice of the said examination was uploaded on the website of the Commission on 22.04.2017. The Scheme of Examination consisted of written examination, i.e., Paper-I and Paper-II examinations, i.e., PET, PSST and detailed medical examination.

3.2. It is submitted that Note-III of Para 11 (D) of notice of examination provides that "all the candidates who qualify in the PET will be medically examined by the Medical Officer of the CAPFs or any other Medical Officer or Assistant Surgeon belonging to Grade I of any Central/State Govt. Hospital or Dispensary. Candidates who are found to be unfit, will be informed of the position and they can make an appeal before Review Medical Board within the prescribed time limit of 15 days. Decision of Re-medical Board/Review Medical Board will be final and no appeal/representation against the decision of the Re-Medical Board/Review Medical Board will be entertained."

3.3. The applicant after clearing Paper-I of the Written Examination, PET/PST, and Paper-II of the Written Examination was called for detailed medical examination vide call letter dated 19.03.2018. She accordingly appeared in the medical examination and was declared unfit by the Medical Board constituted by the Nodal CAPF i.e., the SSB.

3.4. The appeal filed by the applicant was accepted but in the Review Medical Examination also she was again declared unfit on account of LASIK Surgery by the review medical board constituted by the Nodal CAPF, i.e., the SSB. It is submitted that the conduct of Medical Examination was the sole responsibility of the CAPFs and the Commission had no role whatsoever in the conduct of PET/PST and detailed medical examination.

3.5. It is further submitted that SSB was the Nodal agency for conduct of PET/PST and detailed medical examination for the said recruitment examination. It is pertinent to mention here that Ministry of Home Affairs is the Cadre Controlling Authority of all CAPFs and the detailed medical examination is conducted by the CAPFs as per the guidelines issued by the MHA. The applicant should have impleaded the concerned CAPF and the Ministry of Home Affairs as respondents in the OA. However, she has wrongly impleaded the Commission as a respondent in the case who has no role to play in conduct of the PET/PST and medical examination. In view of the above submissions it is prayed that the OA may kindly be dismissed for non-impleadment of necessary party in the case.

4. On the other hand, respondent no. 2, i.e., Commissioner of Police in their reply have contended that the direct recruitment for the post of Women Sub-Inspector (Executive) in Delhi Police is conducted as per Rule 14 (a) of Delhi Police (Appointment & Recruitment) Rules, 1980 (Amendment) Rules, 2013 and Standing Order No. 369/2013. The recruitment is done by SSC on yearly basis along with the posts of SIs/ASIs in CAPFs by organising common tests/examinations including medical examination and candidates are selected for the posts on the basis of merit keeping in view the order of preferences given by them while applying for the examination concerned. Delhi Police conveyed 256 vacancies of SIs/ASIs in CAPFs on 22.04.2017, which included 129 posts for UR category, 68 for OBC, 40 for SC and 19 for ST. A common medical standard for the post of SI (Executive) in Delhi Police and SIs/ASIs in CAPFs and the medical examination of the candidates are done at various hospitals of CAPFs. The medical examination of the applicant was got conducted on 23.04.2018 at Composite, Jal Cantt and was declared medically unfit on account of defective distant vision, tachycardia and hypertension. Against this unfitness, she filed an appeal and her re-medical examination was conducted on 09.08.2018 by the Review Medical Board at Composite Hospital, National Security Guard, Manesar, Haryana. The applicant was found fit in respect of tachycardia and hypertension but review Medical Board declared her unfit on account of refractive surgery (Lasik Surgery). The final result was declared by the SSC on 03.11.2018 where she was not selected. As regards the decision of this Tribunal in OA No. 145/2018 - Renu Hooda (supra) it is submitted that the said OA was allowed by this Tribunal. It is submitted that the executive cadre of the Delhi Police are required to perform duties in extreme weather conditions in day and night, therefore, the matter was taken up by the MHA, GOI, New Delhi and further referred to Department of Legal Affairs, Ministry of Law and Justice for opinion regarding filing an appeal before the Hon'ble High Court of Delhi. The Ministry recommended that necessary changes may be made in the medical standards/qualification for future appointments. After receipt of opinion from the Ministry of Law and Justice the judgment of this Tribunal dated 27.02.2015 in the case of Renu Hooda (supra) was implemented by SSC and selected the applicant therein for the post of W/SI (Exe.) in Delhi Police. Moreover, as per the opinion a proposal was sent to Govt. of NCT of Delhi for amendment in the recruitment rules and the same has been amended vide notification dated 22.10.2018 issued by the Govt. of NCT of Delhi with the approval of Hon'ble Lieutenant Governor of Delhi. As per amendment in the recruitment rules, no correction of eye sight by wearing glasses or surgery of any kind to improve visual acuity is allowed. In view of the above submissions the respondents have prayed for dismissal of the OA, being bereft of any merit.

5. We have heard the learned counsel for the parties and have also carefully gone through the material placed on record.

6. Analysis:

6.1 It is not disputed that the present matter pertains to applicant, who is a candidate of SI in Delhi Police, CAPFs and ASI in CISF Examination, 2017. The Notice of the said examination was uploaded on the website of the Commission on 22.04.2017. The Scheme of Examination consisted of a written examination (Paper-I & Paper-II), PET/PST and Detailed Medical Examination. The applicant after clearing Paper-I of the written examination, PET/PST and Paper-II of the written examination was called for detailed medical examination vide call letter dated 19.03.2018. In the call letter dated 19.03.2018, it had been clearly mentioned that:

"the Medical Examination is the sole responsibility of CAPFs and in no way Staff Selection Commission will be responsible for this."
6.2 It had been further mentioned in the call letter that:

"You will be informed about your Medical fitness at the end of Medical Examination by CAPFs itself, if you are found Unfit in the Medical Examination, you can make appeal to the Inspector General (Pers) office of SSB, East Block No. 5, R.K. Puram, New Delhi -110066 within the prescribed time limits after the date of your Medical Examination. A separate communication will be sent to you by office of SSB regarding acceptance or otherwise of your appeal. No representation will be entertained by Staff Selection Commission on this matter."
6.3 The Applicant appeared in the Medical Examination and was declared unfit by the Medical Board constituted by the Nodal CAPF i.e. the SSB. The applicant appealed for Review Medical Examination which was accepted. In the Review Medical Examination, she was again declared unfit on account of Lasik Surgery by the Review Medical Board constituted by the Nodal CAPF i.e. the SSB. It is most humbly submitted that conduct of Medical Examination was the sole responsibility of the CAPFs and the Commission had no role whatsoever in the conduct of PET/PST and Detailed Medical Examination. This had been clearly mentioned in the Call letters issued to the candidates who were called for PET/PST and Detailed Medical Examination.

6.4 Further, SSB was the Nodal agency for conduct of Physical Endurance Test (PET), Physical Standard Test (PST) and Detailed Medical Examination for the said Recruitment Examination. It is pertinent to mention here that Ministry of Home Affairs is the Cadre Controlling Authority of all CAPFs and the Detailed Medical Examination is conducted by the CAPFs as per the guidelines framed by the MHA.

6.5 The medical examination of the applicant was conducted on 23.04.2018 at Composite Hospital, Jal Cantt. and was declared medically unfit on account of "Defective distant vision, tachycardia and hypertension". Against this unfitness, she filed an appeal and her re-medical examination was conducted on 09.08.2018 by Review Medical Board at Composite Hospital, National Security Guard, Manesar, Haryana. The applicant was found fit in respect of tachycardia and hypertension but review Medical Board declared her unfit on account of refractive surgery (Lasik surgery). The final result was declared by the SSC on 03.11.2018 and the applicant was not selected.

6.6 On the date of medical examination and on the date of review medical examination, no amendment to the rules or any selection process was under consideration or carried out. It is only pursuant to the judgment dated 27.02.2015 passed by Principal Bench of this Tribunal in the case of Renu Hooda (supra) was implemented by SSC and selected the applicant for the post of W/SI (Exe.) in Delhi Police. Moreover, as per the opinion, a proposal was sent to the Govt. of NCT of Delhi for amendment in the recruitment rules and the same has been amended vide notification No. F.16/01/2018/Estt.5475-5477 dated 22.10.2018 issued by the Govt. of NCT of Delhi with the approval of Hon'ble LG, Delhi. As per amendment in the recruitment rules, no correction of eye sight by wearing glasses or surgery of any kind to improve visual acuity is allowed.

6.7 Since the applicant participated in a selection process in terms of the advertisement and pre-existing rules, the respondents are estopped from questioning and/or implementing the amendment as carried out vide notification dated 22.10.2018 by the respondents which are prospective in application. Therefore, it is not open for the respondents to contend that the amendments were applicable to the applicant, as such, in terms of the amendment, the applicant can be denied the appointment in the light of subsequent amendment to the rules regarding medical fitness. Such selection/adoption is not permissible in law as common parity can be allowed to approbate or reprobate as held by this Court in Union of India vs. N. Murugesan, (2022) 2 SCC 25 [LQ/SC/2021/3158 ;] . The relevant part of the judgment is reproduced below:

"Approbate and reprobate

26. These phrases are borrowed from the Scots law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.

xxx xxx xxx

27.2. State of Punjab v. Dhanjit Singh Sandhu (2014) 15 SCC 144] [LQ/SC/2014/298] : (SCC pp. 153-54, paras 22-23 & 25-26)

"22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. MR.P. Firm Muar : AIR 1965 SC 1216 [LQ/SC/1964/283] ].)"
6.8 It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground.

6.9 In R.N. Gosain v. Yashpal Dhir (1992) 4 SCC 683] [LQ/SC/1992/769] this Court has observed as under:

"10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that 'a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage'."
6.10 It is also relevant to mention herein that the decision rendered by the Hon'ble High Court of Delhi in the case of Sreeja K. (supra), relevant part of the judgment reads as under:

"12. The learned counsel for the respondents has placed reliance on the case of Deepak Kumar v. Union of India: WP(C) No. 13159/2009 decided on 23.09.2010. However, on going through the said decision, we find that the same is clearly distinguishable inasmuch as the petitioner in that case had failed to meet the prescribed standards in both the medical examinations conducted to assess his fitness. In the present case, we have already stated that in so far as the second medical examination was concerned, the result of the test indicated that she fell within the parameters prescribed under the said Regulation. The other judgment which was referred to by the learned counsel for the respondents was that of the Supreme Court in the case of Indian Council of Agricultural Research and Anr. v. Smt. Shashi Gupta: : AIR 1994 SC 1241 [LQ/SC/1993/133] . However, that case is also distinguishable inasmuch as the respondent before the Supreme Court had been medically examined and was found medically unfit. But, in the present case, despite the test results falling within the prescribed parameters, the second Medical Board held the petitioner to be unfit on account of LASIK surgery when there was no bar against correction of vision through such a procedure in any rule, regulation, bye-law or order. The facts are different from that of the Supreme Court decision and so also the applicable rules etc. Therefore, the said decision is not at all applicable to the fact of this case and is of no assistance to the respondents.

13. In view of the foregoing, we hold that the order passed by the Tribunal in dismissing the petitioner's Original Application was erroneous. Consequently, the impugned order is set aside. The respondents are directed to consider the petitioner for appointment to the post of Junior Geologist by taking her to be medically fit and the same be done within two weeks."

6.11 Further, similar view has been taken in the case of Renu Hooda (supra), relevant part of the order reads as under:

"14. It is noticed that there is no exclusion provided in the standard for eye-sight with respect to LASIK surgery. The only stipulation is with respect to 'without correction', i.e., 'without wearing of glasses'. In the citations filed by the learned counsel for the applicants one is in the matter of Ms. Sreeja K. (supra) wherein the Hon'ble High Court in a similar matter in which the applicant, who had appeared for the post of Junior Geologist in the interview conducted by UPSC, had been declared medically unfit on account of her having undergone LASIK surgery in the right eye. The Hon'ble High Court in that matter examined the Regulation relating to Physical Examination of candidates for employment in Govt. of India and having done so concluded in Paragraph-6 and Paragraph-7 of the judgment as follows:-

"6. From the above, it is clear that the requirement for the candidate's eye-sight needs to conform to the standard prescribed in the said Regulation. In the first instance when the test was conducted at Safdarjung Hospital, the petitioner's eye-sight did not fit within the standard prescribed in the said Regulation. However, subsequently, she underwent LASIK Surgery and as a result of which, the eyesight improved dramatically and fell within the standard prescribed in the said Regulation. This would be apparent from the fact that so far as distance vision is concerned, the visual acuity for the better eye as per the standard prescribed should be either 6/9 in both the eyes or 6/6 in the better eye and 6/12 in the worse eye. In view of the result of the second medical examination, we find that the petitioner has 6/6 vision in both the eyes, after LASIK Surgery. As such, she now conforms to the visual acuity prescribed in the said Regulation. In fact, even the total amount of Myopia, including cylinder, is much less than 4.00D. The extent has been stated in the test results which we have already indicated to be -0.25 sh. and -0.5 cy. Therefore, in so far as the standards prescribed by the Regulation are concerned, the petitioner has fulfilled those standards after the said LASIK Surgery.

7. We fail to see as to how the Medical Board could then have declared the petitioner unfit. In fact, there are no rules prescribing that the person who has undergone LASIK Surgery would be disqualified or declared unfit for the post of Junior Geologist, in the Geological Survey of India."

(Emphasis supplied).

15. This judgment of the Hon'ble High Court is applicable in the present facts of these OAs. The applicant has achieved the standard prescribed for eyesight after having undergone LASIK surgery and in the absence of any other stipulation that LASIK surgery was debarred for purposes of determining eye vision, the applicant would be deemed to have fulfilled the medical standard for eye sight.

16. We have also perused the Corrigendum issued by the UPSC in the case of Central Armed Police Forces (Assistant Commandants) Examination, 2014 in which the earlier standard published in the Notification for the examination were substituted. Extracts of the same are reproduced as under:-

For Read

(Better eye corrected vision)
Worse eye (corrected vision)

Better eye (corrected vision)
Worse eye (corrected vision)

Type of corrections permitted Spectacles
Type of Corrections Permitted
With Glasses/LASIK Surgery

17. The contention of the respondents, therefore, that the requirement of eye-sight in the Delhi Police for the post in question in these OAs, i.e., SI keeping in view the functional requirements cannot be accepted because in the subsequent examination for a similar post, LASIK surgery has been permitted. The arguments that the requirement for the post 'without wearing of glasses' cannot thus mean that the required eye-sight should be without LASIK surgery.

Xxx xxx xxx

23. Having regard to the facts of the matter as aforestated, various judgments, specially that of the Hon'ble Delhi High Court in the matter of Ms. Sreeja. K (supra), the Ernakulam Bench of the Tribunal, the Hon'ble Guwahati High Court and this Tribunal in OA No. 861/2013, we are of the view that in the absence of any specific exclusion under the medical standard for eye-sight of candidates, who had undergone LASIK surgery, the present applicants cannot be deprived of employment on the basis of the opinion of the Review Medical Board. We, therefore, find that the decision of the Review Medical Board and the impugned action of the respondents cannot be legally sustained and are, therefore, quashed and set aside."

7. Conclusion:

In view of the aforesaid, the present OA is allowed with a direction to the respondents to process the candidature of the applicant for the post of Sub Inspector in Delhi Police as the Review Medical Board found her fit. Therefore, the applicant is entitled to appointment for the post of Sub Inspector subject to fulfilling other terms and conditions as stipulated in the recruitment rules/advertisement. Needless to say that the aforesaid exercise shall be completed by the respondents within a period of 12 weeks from the date of receipt of certified copy of this order. It is also made clear that the applicant shall not be entitled to arrears of salary. The date of joining shall be the relevant date for the purpose of consequential benefits.

8. Pending MAs, if any, are disposed of accordingly.