IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06..02..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 28903 and 30813 of 2007 and M.P. No. 1 of 2007 in respective W.Ps. M. R. Balaji .. Petitioner in W.P. No. 28903 of 2007 V. Srikumar .. Petitioner in W.P. No. 30813 of 2007 Vs. 1. The State of Tamil Nadu Secretary to Government Home Department Fort St. George, Chennai – 9 2. The Director General of Police Chennai 4 3. The Director General of Police Chairman T.N. Uniformed Services Recruitment Board Anna Salai, Chennai – 2 .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records of the respondents in connection with the impugned orders 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)/2003 dated 26.7.2006 (served on 02.3.2007 along with the memo dated 12.2.2007) respectively and quash the same and direct the respondents to select and appoint the petitioner as Grade II Police Constable in the Tamil Nadu Police Subordinate Service and grant all consequential service and monetary benefits. For Petitioners : Mr. K. Venkataramani, SC for Mr. M. Muthappan For Respondents : Mrs. Bhavani Subbaroyan, AGP https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER Heard the arguments of Mr. K. Venkataramani, learned Senior Counsel appearing for Mr. M. Muthappan, counsel for the petitioners and Mrs. Bhavani Subbaroyan, learned Additional Government Pleader taking notice for the respondents and perused the records. 2. The petitioner in W.P. No. 28903 of 2007 appeared for the written test for the post of Police Constable Grade II for the year 2002-03 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, in terms of Rule 14(b) of the Tamil Nadu Police Subordinate Service Rules [for short, 'TNPSS Rules'], he was not given any appointment order. The petitioner filed a writ petition before this Court being W.P. No. 35968 of 2004 challenging the order dated 26.10.2004 rejecting his request for sending him for second medical examination. This Court did not grant the relief but on the basis of the confession made by the learned Special Government Pleader, the respondents were directed to constitute a second Medical Board and on receipt of the report from the second Medical Board, further course of action should be taken by the authorities. 3. Pursuant to the said order, the petitioner was sent for a check up by the Director and Superintendent of the Regional Institute of Ophthalmology and Government Ophthalmic Hospital, Chennai. Even before that, a query was made by the Government and the Director and Superintendent of Regional Institute of Ophthalmology and Government Ophthalmic Hospital, Chennai – 8, informed the Government as follows: "It has been informed therein that the Lasik done cornea is thinner and it cannot withstand trivial injury which can cause displacement of corneal flap, visual deterioration and rupture of globe. It has also been informed that as per Army Rules, persons with Lasik done eyes are made unfit for Army service." 4. Pursuant to the said explanation given by the expert, the Government, in consultation with the Director General of Police, passed an order dated 28.10.2005, which was communicated by the Director General of Police, by a latter dated 08.11.2005, which reads as follows: "As per the Government clarification issued in Government letter cited, the candidates who underwent / undergo Lasik Laser / Surgery / Excimer Laser Surgery in the eyes be declared as "UNFIT" to Police Service, by direct recruitment." https://hcservices.ecourts.gov.in/hcservices/ 5. Even thereafter, in view of the order passed by this Court, as stated already, the petitioner's case was referred and in the report of the second Medical Board, it was stated as follows: "History of Excimer Laser Surgery / S/L. Corneal Flap marking seen. Corneal thinning present in both eyes." 6. In view of the said reply and in the light of the earlier decision taken by the Director General of Police, the petitioner was informed accordingly which is challenged in W.P. No. 28903 of 2007. 7. In the same way, in W.P. No. 30813 of 2007, the petitioner despigte his provisional selection was not given the order of appointment in terms of Rule 14(b)(i) of the TNPSS Rules. Accordingly, he was informed by a letter dated 26.7.2006, which was communicated by a letter dated 12.02.2007. It is this order, which is under challenge in this writ petition. 8. Mr. K. Venkataramani, learned Senior Counsel appearing for petitioners contended that this Court in several other proceedings allowed similar prayer and, therefore, these two writ petitions also should be allowed. 9. This Court is unable to agree with the said submission. The two petitioners have applied for a post in the Uniformed Services and it requires high discipline and morale and complete physical fitness. The petitioner in W.P. No. 28903 of 2007 (M.R. Balaji) had the luxury of an earlier writ petition wherein this Court, on the concession made by the Special Government Pleader, allowed him to for a second check up and even in that, it was stated that the petitioner had undergone eye surgery and it may not be conducive to keep him in the Police Force. In the second writ petition being W.P. No. 30813 of 2007, the petitioner was specifically informed about the recognition of the Medical Board stating that his eyes are unfit and he has done laser surgery and he is having eye defect. Rule 14(b) of the Special Rules reads as follows: "14(b) No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the appointing authority. (i) that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service." 10. The petitioners are yet to enter into service and the Rule is also not under challenge. Secondly, the Rules have been framed considering the nature of service and also the duties attached to the said post and this Court, out of sympathy, cannot grant any direction. In respect of the Recruitment Rules framed under Article 309 of the Constitution of India, the employers can have complete 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, on sympathy, dilute the standard of such recruitment. While in the first case, even the second Medical Board has found the petitioner unfit and in the second case, the Medical Board had found that the petitioner's eye sight was not fit for the job, it is not open this Court to grant a direction as prayed for by the petitioners. 11. In Union of India Vs. S.Vinod Kumar reported in 2007 AIR SCW 5989, the Supreme Court while dealing with the power of the employer 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 the requisite jurisdiction to fix the cut-off marks, the necessary corollary thereof would be that it could not be directed to lower the same. It is trite that it is for the employer or the expert body to determine the cut-off marks. The Court while exercising its power of judicial review would not ordinarily intermeddle therewith. The jurisdiction of the Court, in this behalf, is limited. The cut- off marks fixed will depend upon the importance of the subject for the post in question. It is permissible to fix different cut-off marks for different categories of candidates (See Banking Service Recruitment Board, Madras v. V.Ramalingam and others (1998) 8 SCC 523)" 12. The judgment of the unreported decision of this Court cited by the learned counsel in the case relating to V. Balamurugan v. State of Tamil Nadu and another does not lay down any legal proposition but turns out on the peculiar facts of the case. The other orders shown are all interim orders and the writ petitions have not reached any finality. 13. In the light of the above, both the writ petitions fail and stand dismissed. No costs. Connected Miscellaneous Petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gri https://hcservices.ecourts.gov.in/hcservices/ To 1. Secretary to Government Government of Tamil Nadu Home Department Fort St. George Chennai – 9 2. The Director General of Police Chennai 4 3. The Director General of Police Chairman T.N. Uniformed Services Recruitment Board Anna Salai, Chennai – 2 W.P. Nos. 28903 and 30813 of 2007 MRD (CO) kk 16/2 https://hcservices.ecourts.gov.in/hcservices/