The Gujarat High Court recently comprising of Justice A.S. Supehia in the Mahendra Chawla v. Union of India rejected the plea by a man who had approached the Court after he was declared unfit for a job in the Border Security Force in view of a tattoo on his forearm. The bench noted that the candidate should have undergone the process of removal of tattoos prior to participation in the recruitment process.
Facts of the case
The petitioner applied for the post of Constable Store Keeper (Male) in the Border Security Force (BSF) and cleared all the examinations and thereafter, he was called for Medical Examination. It was the case of the petitioner that he was not been appointed in view of a tattoo on his right forearm. After such a report was made by the Medical Board declaring him unfit in view of the tattoo, he thereafter got the tattoo removed and accordingly, also obtained a certificate from one M/s.Jai Bhole Tattoo. The petitioner was called for Review Medical Examination however, he was declared unfit.
He prayed for the issuance of a writ of mandamus declaring him 'fit' in the 'Medical Examination' as he had already undergone the tattoo removal process.
Contention of the Parties
The petitioner submits before the Court that the petitioner was a resident of a rural village and there is a custom and tradition in the rural areas to get the tattoo on the body and when his case was rejected on the ground of the tattoo, he immediately got it removed. It was submitted that the respondents may accordingly, be directed to consider his case of appointment to the said post since the tattoo was only 2/3 cm in size.
Learned advocate, on the contrary, submitted that the petitioner appeared before the Review Committee in view of the suggestion of the Medical Board to undergo the process of removal of the tattoo and after he had removed the same immediately within a period of 4 days, he was examined by the Review Board.
Courts Observation and order
The bench at the very outset observed, "The petitioner is seeking appointment to the post of Constable Store Keeper in a Disciplined Force such as BSF. The norms are already published by the Ministry of Home Affairs (Directorate General Board Security Force) in the detailed advertisement.
In the advertisement, the location and size of the tattoo are already mentioned. It is also mentioned that in case of a candidate, who has undergone the removal process of tattoo “prior to appearing in the recruitment process” and the same has faded substantially, the same will be treated as a scar and not a tattoo, and the such candidate is permitted to undergo the entire selection process with the approval of Presiding Officer of the Recruitment Board and further, the scar, resulting due to removal of the tattoo, will be reviewed by the Medical Officer during the detailed examination."
The bench further observed, "Unquestionably, in the present case, the petitioner was already having a tattoo, after he had undergone the recruitment process. As per the Review Examination Board, the tattoo was found on the right forearm of the petitioner depicting a heart and arrow with the initials ‘M’ and he was declared unfit. Thus, the provision of the advertisement mandates that tattoos should have been removed prior to the recruitment process and the same must have faded substantially. Thus, the petitioner cannot claim appointment in the Disciplined Force, after removal of his tattoo, that too after undergoing the recruitment process."
The bench rejecting the petition remarked, "Thus, this Court does not find any illegality or infirmity in the order passed by the respondent authority denying his appointment as per the specific provision of paragraph No.D(d) of the advertisement. Infirmity cannot be subsequently cured in order to dilute the provision of the advertisement. The candidate, as per the provision as mentioned hereinabove, prior to participation in the recruitment process should have undergone the process of removal of tattoo resulting into its fading substantially and only such removal of tattoo can be treated as a scar and not tattoo.
In the present case, the aforesaid provisions are absolutely violated and hence, the petitioner cannot claim appointment to the aforesaid post, and this Court while exercising discretion under Article 226 of the Constitution of India, cannot issue such directions, which are contrary to the conditions envisaged in the advertisement. 9. The present writ petition is summarily rejected."
Case Title: Mahendra Chawla v. Union of India
Citation: R/Special Civil Application No. 24720 of 2022
Coram: Justice A.S. Supehia
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