JUDGMENT : Sambuddha Chakrabarti, J. 1. The petitioner is aggrieved by the decision of the review medical board constituted by the respondents by which he has been declared to be medically unfit to hold the post of a Constable (GD) in the Board Security Force (BSF, for short). 2. The case of the petitioner in short is that he applied for the post of Constable (GD) in the BSF. He was selected and was directed to appear for the medical examination. That medical examination was found him to be fit. Close to 4 years after such medical examination, the Director General, BSF, i.e. the respondent No. 2 herein directed the petitioner to join his duties at BSF Wing, Kadamtala which he did on November 13, 2015. 3. Subsequently, by an order dated December 23, 2015, the petitioner was found to be medically unfit for having a tattoo mark on the right upper arm. It was specifically mentioned in the said order that in case he wanted to prefer to file an appeal against the findings of the medical examination, he was to apply for review medical examination in the appropriate format after obtaining necessary medical certificate from the registered medical practitioner as per the requirement of the from, within a period of 15 days. 4. The petitioner applied for an examination by a review medical board and the said medical board declared the petitioner to be unfit and he was dismissed from service. That has compelled him to approach this Court. 5. This writ petition was admitted for hearing by an order dated January 12, 2017 giving liberty to the respondents to file an affidavit-in-opposition within four weeks from that date. Four weeks expired on February 9, 2017. Today when the matter is taken up for hearing Mr. Sen, the learned advocate for the respondents his filed his affidavit affirmed on March 16, 2017 which is more than a month after the scheduled date of filing the affidavit-in-opposition. If the respondents had any difficulty in filing the affidavit, they could have asked for extension of time, which they did not. The reason very instantly sought to be made by Mr. Sen is that my earlier order contained certain directions and since there was delay in uploading the order in the server, it was not possible for the respondents to draw the affidavit before March 16, 2017. The reason very instantly sought to be made by Mr. Sen is that my earlier order contained certain directions and since there was delay in uploading the order in the server, it was not possible for the respondents to draw the affidavit before March 16, 2017. I had to draw the attention of Mr. Sen that there was no delay in uploading the order. The order was uploaded in the server on January 16, 2017 and January 14 and January 15, 2017 were holidays. So the plea of unavailability of the order is not something that he may rely on. 6. The affidavit-in-opposition affirmed by the Deputy Inspector General of the BSF does not furnish any new information with regard to the case made by the petitioner. However, certain internal communications and the relevant documents annexed to the affidavit are relevant for the disposal of the present writ petition. The affidavit says that after the petitioner was selected, a dossier of the petitioner was received by the Headquarter of the BSF to scrutinize it and it was found that some results were not enclosed with it. Subsequently, the petitioner was produced before the Board of Officers. During the medical examination he was found unfit due to tattoo mark on the right upper arm. After receiving the appeal, he was again produced before a review medical board which was held on February 15, 2016 and there also the petitioner was found unfit. 7. The rest of the affidavit-in-opposition is about the steps that different departments of the respondents had taken with various intra-departmental communications. Since that is not the subject matter of the present dispute, we are not concerned with the details of the steps taken by the respondents and the procedure adopted by them. On the contrary, the question that calls for consideration is the action taken by the respondents leading him to appear before the review medical board and the decision making process of the said board. 8. The petitioner must have been initially found to be medically fit otherwise the authorities would not have allowed him to join his duties and that too after an inordinate delay of 4 years. 'Annexure P-2' to the writ petition bears testimony to the claim of the petitioner. This document contains the names of the candidates with regard to their medical fitness. 'Annexure P-2' to the writ petition bears testimony to the claim of the petitioner. This document contains the names of the candidates with regard to their medical fitness. The petitioner was found medically fit and must have produced all the documents at the time of reporting for his joining. 9. The appointment letter issued to the petitioner specifically mentioned in Clause IV that a candidate is supposed to produce all the documents relating to physical standard test, medical examination test, review medical test etc. at the time of reporting. It was made specifically clear that if a candidate does not produce the same, his candidature would be treated as 'temporary' and if no document could be produced relating to physical standard test and medical examination test he would be made ready for examination before the Medical Examination Board which will again examine the candidate. It is also made clear that if the petitioner had failed in the test before the concerned Board his candidature would be cancelled totally. 10. The candidature of the petitioner was not cancelled. That is a confirmed proof by circumstances that he produced the relevant documents relating to his fitness at the time of reporting for joining his duties in the Force. The only reason as it appears from the fact is the absence of some documents in the dossier of the petitioner. This cannot be the fault of the petitioner if the authorities find any document wanting. There cannot be any two possibilities of this. If the rules require that the documents must be produced at the time of reporting for joining his duties and when the petitioner was allowed to join, the Court is entitled to draw a presumption that the respondents did not violate the rules in allowing the petitioner to join his duties without void documents. 11. This takes us to the consideration of the situation for which there is no legal sanction, at least appearing from the affidavit filed by the respondents. Where is the rule that a candidate after being found medically fit to join the Force will be subjected to another medical examination merely because the dossier was found incomplete? A larger question is begging an answer. Must an employee suffer because of the failure on the part of the employer to furnish and produce all the documents? 12. Where is the rule that a candidate after being found medically fit to join the Force will be subjected to another medical examination merely because the dossier was found incomplete? A larger question is begging an answer. Must an employee suffer because of the failure on the part of the employer to furnish and produce all the documents? 12. At the fresh medical examination, a tattoo mark was found on the right upper hand of the petitioner and he was declared unfit. I fully agree with the question posed by Mr. Kankani that in the absence of any statutory provision or instruction or guideline or rules why must a candidate, that too in this case a member of the Force, was to be declared unfit merely because he has a tattoo mark on the right upper arm? Had it been in the lower arm of the right hand, one might try to provide some justification, as the right hand is the saluting arm. Even that has not been found favour with reason in a Division Bench Judgement of the Delhi High Court to which I shall refer later. 13. It is an admitted position that the petitioner got the tattoo mark removed by laser surgery at a hospital at Gaya. With that certificate he applied for constituting a review medical board. 14. The review medical board assembled on February 15, 2016 and in the proforma for the result, the finding of review medical board was provided. Four members of the board found the petitioner unfit on account of an operated tattoo on the right upper arm. From this stage onwards we come across a totally new case for declaring the petitioner as unfit. If the first reason was the presence of tattoo mark, the second was the mark of operation for removing the tattoo. It appears from the proceedings of the board annexed to the affidavit-in-opposition as Annexure R-7' that the Board of Officers assembled to conduct the review medical examination in respect of nine candidates who were selected to the post of Constable (GD)-2011. It appears that four out of nine including the petitioner were found to be medically unfit. 15. There is no reason mentioned in the affidavit why this scar mark of an operated tattoo should be considered a medical disqualification which is not a functional disability. Mr. It appears that four out of nine including the petitioner were found to be medically unfit. 15. There is no reason mentioned in the affidavit why this scar mark of an operated tattoo should be considered a medical disqualification which is not a functional disability. Mr. Sen has drawn my attention to a communication dated November 16, 2012 made by the under Secretary, Ministry of Home Affairs, Government of India which makes the issue very clear. It was admitted in the said communication that there was no specific instruction on the issue of candidates' having tattoos on various parts of the body. The matter was considered by the Ministry and it had been decided that the instructions recorded therein were to be followed while conducting the recruitments. A candidate with a small engraving/tattoo of name or religious symbol on the inner side of the arms or hands was permitted for enrolment and the candidates having permanent tattoo on any part of the body were to be debarred from recruitment. 16. It has to be admitted, and Mr. Sen had no alternative but to submit, that these instructions lack statutory force governing the field of recruitment. Mr. Sen submitted that the review medical board had disqualified the petitioner in terms of the said instructions. 17. Strictly speaking this communication or the decision of the Ministry was not applicable to the petitioner at all. It refers to the candidates appearing for the examination before recruitment. Why must a candidate who has been medically examined and allowed to join the Force be subject to the instructions which apply to a candidate at the time of his entry into the service? The authorities ought to have considered that between an employee and a candidate there is good deal of difference and what is applicable to a candidate at the time of his entry should not have been made applicable to a member of the Force. There was not even any faint suggestion that the members of the review medical board could have the liberty to apply the instructions to a person who is already in employment. 18. If one also look at the performance of the review medical board one has to agree that there is no reason explained why the mark of operation on the right upper arm be considered to be a medical disqualification for employment. 18. If one also look at the performance of the review medical board one has to agree that there is no reason explained why the mark of operation on the right upper arm be considered to be a medical disqualification for employment. Probably they had acted on the instruction given by the concerned Ministry without even approaching the issue from the medical angle whether it was a functional disability standing in the way of his performing the duty, before they declared the petitioner unfit for service. Thus, conversely seen, the respondents had acted on the communication made by the under Secretary to the Government of India. 19. Very recently such an issue cropped up for consideration before a Division Bench of the Delhi High Court in the case of Abhay Kumar v. Union of India & Anr. (W.P. 10634 of 2016). The Division Bench in its order dated January 27, 2017, had mentioned the guidelines for medical examination of candidates appearing for employment as 'Constable' in different services. Their Lordships were pleased to hold that there is nothing in the guidelines in terms whereof a candidate can be debarred only on the ground of having a tattoo mark. There is a striking similarity between the facts and circumstances of the two cases. In the case before the Delhi High Court, the tattoo mark had been operated upon leaving some scar marks. The Division Bench had noted that this was not a functional disability and the petitioner cannot be said to be medically unfit. Even the contention of the respondents that the right hand is a saluting hand, was rejected as such a stand is not backed by any specific rule debarring a candidate with any marks on the forearm from being appointed. 20. In the present case, the scar mark after removal of tattoo was on the right upper arm. Thus, there was no justifiable reason for the respondents to declare the petitioner to be medically unfit and consequently to dismiss him from service. The action of the respondents was thoroughly wrong. 21. In such view of it, I find sufficient merit in the case of the petitioner and equally, if not more, demerit in the action taken by the respondents. The petitioner has been unjustly removed from service upon an equally unjust finding the review medical board. 22. The writ petition is allowed. The action of the respondents was thoroughly wrong. 21. In such view of it, I find sufficient merit in the case of the petitioner and equally, if not more, demerit in the action taken by the respondents. The petitioner has been unjustly removed from service upon an equally unjust finding the review medical board. 22. The writ petition is allowed. The order of termination dated December 23, 2015 is set aside and quashed. 23. The respondents are directed to re-instate the petitioner in service without two weeks from the date of communication of this order to the post he was holding before his termination. 24. Since the termination was the result of an absolutely wrong order passed by the respondents, I consider the petitioner to be entitled to the service benefits. The respondents shall consider the petitioner to be in continuous employment from the date he joined the Force. 25. I, however, direct the respondents to pay 50% of the wages during the period i.e. from the date of his termination and the date of re-instatement in service. Such amount is to be paid to the petitioner in four equal monthly instalments. First of such monthly instalments is to be paid by April 17, 2017 and the rest of the instalments are to be paid by 15th of the month next succeeding. 26. I have found the action of the respondents to be not only unjustified but also based on certain inherently unsupportable approach. It is for them that the petitioner had been compelled to approach this Court. It is for them that the petitioner had lost his employment. It is for them that the petitioner had to pass through serious mental agony of losing employment. And it is for them that the petitioner had been rendered jobless without any statutory back-up. 27. I direct the respondents also to pay Rs. 20,000/- as costs to the petitioner within a period of two weeks from the date of communication of this order. In default, the petitioner shall be entitled to recover the same in accordance with law.