M. R. Balaji v. The State of Tamil Nadu Secretary to Government Home Department Fort St. George, Chennai – 92

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 06..02..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. Nos. 28903 and 30813 of 2007andM.P. No. 1 of 2007 in respective W.Ps.M. R. Balaji.. Petitioner in W.P. No. 28903 of 2007V. Srikumar .. Petitioner in W.P. No. 30813 of 2007Vs.1.The State of Tamil Nadu Secretary to GovernmentHome DepartmentFort St. George, Chennai – 92.The Director General of PoliceChennai 43.The Director General of PoliceChairmanT.N. Uniformed Services Recruitment BoardAnna Salai, Chennai – 2 .. Respondents Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus calling forthe records of the respondents in connection with the impugnedorders issued by the second respondent in Na. Ka. No. 182438/Rect.1(2)/2005 dated 30.3.2007 and Na. Ka. No. 214154/Rect.1 (1)/2003dated 26.7.2006 (served on 02.3.2007 along with the memo dated12.2.2007) respectively and quash the same and direct therespondents to select and appoint the petitioner as Grade II PoliceConstable in the Tamil Nadu Police Subordinate Service and grant allconsequential service and monetary benefits.For Petitioners : Mr. K. Venkataramani, SC for Mr. M. MuthappanFor Respondents : Mrs. Bhavani Subbaroyan, AGP https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERHeard the arguments of Mr. K. Venkataramani, learned SeniorCounsel appearing for Mr. M. Muthappan, counsel for the petitionersand Mrs. Bhavani Subbaroyan, learned Additional Government Pleadertaking notice for the respondents and perused the records. 2.The petitioner in W.P. No. 28903 of 2007 appeared for thewritten test for the post of Police Constable Grade II for the year2002-03 and he was provisionally selected for the said post.However, when he was sent for the examination by the Medical Board,it was found that he had Visual Acuity Defect and, therefore, interms of Rule 14(b) of the Tamil Nadu Police Subordinate ServiceRules [for short, 'TNPSS Rules'], he was not given any appointmentorder. The petitioner filed a writ petition before this Courtbeing W.P. No. 35968 of 2004 challenging the order dated 26.10.2004rejecting his request for sending him for second medicalexamination. This Court did not grant the relief but on the basisof the confession made by the learned Special Government Pleader,the respondents were directed to constitute a second Medical Boardand on receipt of the report from the second Medical Board, furthercourse of action should be taken by the authorities. 3.Pursuant to the said order, the petitioner was sent for acheck up by the Director and Superintendent of the RegionalInstitute of Ophthalmology and Government Ophthalmic Hospital,Chennai. Even before that, a query was made by the Government andthe Director and Superintendent of Regional Institute ofOphthalmology and Government Ophthalmic Hospital, Chennai – 8,informed the Government as follows:"It has been informed therein that the Lasik donecornea is thinner and it cannot withstand trivialinjury which can cause displacement of corneal flap,visual deterioration and rupture of globe. It hasalso been informed that as per Army Rules, personswith Lasik done eyes are made unfit for Armyservice."4.Pursuant to the said explanation given by the expert, theGovernment, in consultation with the Director General of Police,passed an order dated 28.10.2005, which was communicated by theDirector General of Police, by a latter dated 08.11.2005, whichreads as follows:"As per the Government clarification issued inGovernment letter cited, the candidates who underwent/ undergo Lasik Laser / Surgery / Excimer LaserSurgery in the eyes be declared as "UNFIT" to PoliceService, by direct recruitment." https://hcservices.ecourts.gov.in/hcservices/

5.Even thereafter, in view of the order passed by thisCourt, as stated already, the petitioner's case was referred and inthe report of the second Medical Board, it was stated as follows:"History of Excimer Laser Surgery / S/L. Corneal Flapmarking seen. Corneal thinning present in botheyes."6.In view of the said reply and in the light of the earlierdecision taken by the Director General of Police, the petitioner wasinformed accordingly which is challenged in W.P. No. 28903 of 2007.7.In the same way, in W.P. No. 30813 of 2007, the petitionerdespigte his provisional selection was not given the order ofappointment in terms of Rule 14(b)(i) of the TNPSS Rules.Accordingly, he was informed by a letter dated 26.7.2006, which wascommunicated by a letter dated 12.02.2007. It is this order, whichis under challenge in this writ petition.8.Mr. K. Venkataramani, learned Senior Counsel appearing forpetitioners contended that this Court in several other proceedingsallowed similar prayer and, therefore, these two writ petitions alsoshould be allowed. 9.This Court is unable to agree with the said submission.The two petitioners have applied for a post in the UniformedServices and it requires high discipline and morale and completephysical fitness. The petitioner in W.P. No. 28903 of 2007 (M.R.Balaji) had the luxury of an earlier writ petition wherein thisCourt, on the concession made by the Special Government Pleader,allowed him to for a second check up and even in that, it was statedthat the petitioner had undergone eye surgery and it may not beconducive to keep him in the Police Force. In the second writpetition being W.P. No. 30813 of 2007, the petitioner wasspecifically informed about the recognition of the Medical Boardstating that his eyes are unfit and he has done laser surgery andhe is having eye defect. Rule 14(b) of the Special Rules reads asfollows:"14(b) No person shall be eligible for appointmentto the service by direct recruitment unless hesatisfies the appointing authority.(i) that he is of sound health, active habits andfree from any bodily defect or infirmity unfittinghim for such service."10.The petitioners are yet to enter into service and the Ruleis also not under challenge. Secondly, the Rules have been framedconsidering the nature of service and also the duties attached tothe said post and this Court, out of sympathy, cannot grant anydirection. In respect of the Recruitment Rules framed underArticle 309 of the Constitution of India, the employers can havecomplete freedom subject to Articles 14 and 16 of the Constitution https://hcservices.ecourts.gov.in/hcservices/ of India in the matter of recruitment and this Court cannot, onsympathy, dilute the standard of such recruitment. While in thefirst case, even the second Medical Board has found the petitionerunfit and in the second case, the Medical Board had found that thepetitioner's eye sight was not fit for the job, it is not open thisCourt to grant a direction as prayed for by the petitioners.11.In Union of India Vs. S.Vinod Kumar reported in 2007 AIRSCW 5989, the Supreme Court while dealing with the power of theemployer to fix different cut of marks for different categories,held in paragraph 11 of the judgment stated as follows:Para 11:.... Once it is held that the appellants had therequisite jurisdiction to fix the cut-off marks, thenecessary corollary thereof would be that it couldnot be directed to lower the same. It is trite thatit is for the employer or the expert body todetermine the cut-off marks. The Court whileexercising its power of judicial review would notordinarily intermeddle therewith. The jurisdictionof the Court, in this behalf, is limited. The cut-off marks fixed will depend upon the importance ofthe subject for the post in question. It ispermissible to fix different cut-off marks fordifferent categories of candidates (See BankingService Recruitment Board, Madras v. V.Ramalingam andothers (1998) 8 SCC 523)"12.The judgment of the unreported decision of this Courtcited by the learned counsel in the case relating to V. Balamuruganv. State of Tamil Nadu and another does not lay down any legalproposition but turns out on the peculiar facts of the case. Theother orders shown are all interim orders and the writ petitionshave not reached any finality. 13.In the light of the above, both the writ petitions failand stand dismissed. No costs. Connected MiscellaneousPetitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gri https://hcservices.ecourts.gov.in/hcservices/ To1.Secretary to Government Government of Tamil Nadu Home DepartmentFort St. GeorgeChennai – 92.The Director General of PoliceChennai 43.The Director General of PoliceChairmanT.N. Uniformed Services Recruitment BoardAnna Salai, Chennai – 2W.P. Nos. 28903 and 30813 of 2007MRD (CO)kk 16/2