Bombay High Court
Shahid Bhagat Singh Road vs The Union Of India on 25 June, 2009
Author: Swatanter Kumar
Bench: Swatanter Kumar, S.C. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2821 OF 2008
Manish Kumar Shaw, EAP3 )
INS Delhi, C/o Fleet Mail Office )
Shahid Bhagat Singh Road )
Mumbai 400 001. ).. Petitioner
Versus
1) The Union of India
ig )
Ministry of Defence, South Block )
DHQ, Post, New Delhi 110011. )
2) The Chief of the Army Staff )
Represented by Addl. Director General )
of Recruiting AG's Branch, IHQ Of MOD )
(Army), West Block III, R.K. Puram )
New Delhi 110 066. )
3) The Director General Armed Forces )
Medical Services, Directorate of Armed )
Forces Medical Services, Ministry of )
Defence, `M' Block, New Delhi 110 011. )
4) The Commandant )
Research & Referral Hospital )
New Delhi. )
5) The Commandant )
M H Allahabad 211 001. )
6) The Commandant )
Armed Forces Medical College )
Pune 403 040. )
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2
7) The Commanding Officer )
INHS Asvini, Colaba )
Mumbai 400 005. )
8) The Commandant )
Indian Military Academy )
Dehradun (Uttara Khand) )
9) The Commanding Officer INS Delhi )
C/O Fleet Ma. Oil Office )
Mumbai 400 001. )
10) Dr Nagendra B Shah )
Bombay Hospital
ig )
Mumbai 400 020. ).. Respondents.
Mr. Ajay Pal Singh for the Petitioner.
Mr. H.K. Vardhan for the Union of India.
CORAM : SWATANTER KUMAR, C.J. AND
S.C. DHARMADHIKARI, J.
JUDGMENT RESERVED ON : 8TH JUNE 2009
JUDGMENT PRONOUNCED ON :25TH JUNE 2009
JUDGMENT (PER SWATANTER KUMAR, C.J.)
Rule. By consent, Rule made returnable forthwith and taken up for hearing and final disposal.
::: Downloaded on - 09/06/2013 14:43:01 ::: 32. Vide letter dated 24th September 2008, the Director, AFMS (H) communicated to the Petitioner the result of the Review Medical Board conducted at AFMC, Pune. The result of the Review Medical Board reads as under :
"1. Refer preceding notes.
2. Manish Kumar Shaw a candidate for IMA-124 entry has been declared medically UNFIT for his disability "LENTICULAR OPACITY (RT) EYE" during RMB held at AFMC Pune on 31 Dec 2007.
3. Documents are returned herewith for your further action please.
Sd/-
(SK Kaushik) Lt Col RPO/DG-3A 10 Jan 2008"
3. The legality and correctness of the above decision has been challenged by the Petitioner in the present Writ Petition under Article 226 of the Constitution of India, primarily on the ground that the Petitioner does not suffer from any defect generally or in medical ::: Downloaded on - 09/06/2013 14:43:01 ::: 4 terms which has justified rejection of his candidature as his eye eight even of now was 6x6 without glasses in both eyes. It is also the contention of the Petitioner that the action of the Respondents suffers from arbitrariness or discrimination as persons with similar defect have been permitted to undergo the training while the Petitioner's case has been rejected. As such it is violative of Articles 14 and 16 of the Constitution of India.
4. The Petitioner raised the above challenge on the facts that he had joined Indian Navy as Matric Entry Artificer Apprentice on 31st January 2001. After completing training for four years, he was even awarded the Diploma in Electrical Engineering and promoted to EAP5 rank where after the Petitioner even received further promotion as EAP3 which is equivalent to the Chief Petty Officer in the Navy. In October 2006, the Petitioner applied to the Union Public Service Commission (UPSC) for Combined Defence Services Examination. He qualified the said examination and call letter was issued to the Petitioner by the Commandant Selection Centre, Allahabad SSB interview on 4th September 2007. He, however, did not receive this letter and second and final letter was ::: Downloaded on - 09/06/2013 14:43:01 ::: 5 issued to him on 17th September 2007 in furtherance to which the Petitioner appeared for the interview. The Special Medical Board was conducted for all the candidates who qualified for SSB. The Petitioner was declared unfit for "Lenticular Opacity Inferiorly" (Rt) Eye, on 27th October 2007. Copy of the instructions in that regard were also provided to the candidates who were declared unit by the Special Medical Board. On 17th September 2007, the Petitioner wrote to the Commandant Armed Forces Medical College, Pune that he had not received the result of the RMB and he had only been verbally informed that he was declared unfit due to minor spot in the right eye. Thereafter the Petitioner was served with the Medical Board findings vide letter dated 24th September 2008 as already noticed. It may also be noticed that on 24th October 2007 the Petitioner stated that since he had been declared unfit, he would undergo an Appeal Medical Board. This Medical Appeal was entertained. Vide letter dated 1st December 2007 the Petitioner wanted to challenge the findings of the Appeal Medical Board as, according to him, he did not suffer from any defect which would justify rejection of his candidature. Thus, he prayed for holding of a Review Medical Board.
::: Downloaded on - 09/06/2013 14:43:01 ::: 65. The Petitioner underwent a medical check and has annexed a medical certificate dated 8th December 2007 which was issued by the Taparia Institute of Opthalmology, Bombay Hospital and Medical Research Centre, Mumbai, wherein it was stated as under :-
".... He has a streak of Lenticular cornial opacity in inferior quadrant of right lens looks to be developmental in nature.
This Lenticular opacity does not cause any visual disturbances for the patient and according to literature reports the chances of it to develop in the further cataract is very negligible."
The Review Medical Board was held at Pune on 31st December 2007, details of which were not known to the Petitioner and already noticed they came to the notice of the Petitioner subsequently against which the Petitioner filed a representation to the Additional Directorate General Recruiting on 20th May 2008 and prayed that he should be allowed to re-appear for medical examination at RR/Base Hospital, New Delhi. Thereafter vide letter dated 24th September 2008, the Diector AFMS (H) informed the Petitioner the result of RMP ::: Downloaded on - 09/06/2013 14:43:01 ::: 7 conducted at AFMC, Pune. Thus, the Petitioner was compelled to approach this Court.
6. In the reply filed on behalf of the Respondents, the stand taken is that the Petitioner has been examined by a Special Medical Board, Appeal Medical Board as well as the Review Medical Board and every time the findings have been recorded against the Petitioner. The examinations were done in consonance with the medical standards for entry to IMA in terms of Directorate General Medical Services (Army) Integrated HQs of Ministry of Defence (Army), New Delhi letter No. 76054/Policy/DGMS-5(A) dated 22nd December 2000. The Petitioner having been found medically unfit, it is not possible for the Respondents to clear the Petitioner for training to the IMA as a Commissioned Officer. The Medical Board proceedings have been recorded in Armed Forces Medical Services Forms (AFMSF)-2 and it is not obligatory upon the Respondents to supply the copy thereof. However, the conclusions of the Medical Board had been communicated to the Petitioner view letter dated 24th September 2008. As far as the allegation of discrimination is concerned, the same has been vaguely denied. It is averred that the ::: Downloaded on - 09/06/2013 14:43:01 ::: 8 Petitioner was declared unfit by all Medical authorities; that the Petitioner has a minor spot in the right eye which though does not cause vision problem at present and even it may or may not grow in future, but however if it grows it may develop problem in future and the eye diagram along with medical certificate dated 8th December 2007 even also shows that the Petitioner suffers from a problem in the right eye.
7. First of all, this Court has to examine as to what weightage is to be given to the findings recorded by the experts bodies like Medical Board and to what extent the Court can interfere with such findings on the basis of averments made in the Writ Petition. It is a settled principle of law that the findings recorded by the Medical Board much less same findings being repeatedly recorded by different authorities can hardly be interfered with by the Court in exercise of its jurisdiction under Article 226 of the Constitution of India. There can hardly be a dispute that the Petitioner has some problem in the eye and according to the Respondents he suffers from Lenticular Opacity. This defect has also been noticed by the Bombay Hospital, but according to the Doctors in the Opthomology ::: Downloaded on - 09/06/2013 14:43:01 ::: 9 Department of the Bombay Hospital, at present he may not be suffering from a vision defect but according to the Medical Board experts there is every likelihood that the Petitioner will suffer such defect in vision at any stage. These are the opinions expressed by the expert body. The Special Medical Board recorded its finding, which was subjected to the Appeal wherein same findings were affirmed and thereafter a Review Medical Board was held for the Petitioner, and even there same findings were recorded. Three different authorities which have been created by Statute and are expert bodies have recorded concurrent findings which do not suffer from any apparent perversity. At least none has been shown to us. It will not be proper for this Court to interfere with the findings so recorded.
8. In the case of Ex. Rect/Rfn. Nahar Singh vs Union of India and others, (Writ Petition (C) No. 12853 of 2005 decided on 13th July 2006), a Bench of the Delhi High Court while accepting the contention that the opinion of a Medical Board has to be given precedence by Courts, held as under :-
::: Downloaded on - 09/06/2013 14:43:01 ::: 10"...... In the facts and circumstances of the case, the petitioner cannot take up the plea that he was found to be fit at the time of joining the military service. The mere fact that he was subjected to medical check up would not be of any consequence or help to the petitioner in view of his own admission in the medical records that he was suffering one year prior even to his placement to the training centre.
In terms of the judgment of the Supreme Court in the case of Controller of Defence Accounts (Pension) and Others Vs. S. Balachandran Nair, AIR 2005 SC 4391 the report and opinion of the Medical Board has to be respected and cannot be ignored. Once the Medical Board has been conducted in accordance with law and patently does not suffer from any travesty or factual arbitrariness, the Court would accept the said opinion."
Reference can also be made to the cases in Ex. Sep. Mahavir Prasad vs. Union of India and others, Writ Petition (C) No.20126 of 2005 and Ex. Sp. Bhim Singh vs. Union of India and others, Writ Petition (C) No.21671 of 2005.
9. The plea of the Petitioner that in view of the certificate issued by the Bombay Hospital, the findings of the Medical Board are liable to be rejected and the Petitioner is entitled to the relief prayed for is without substance and merit. Firstly, we have noticed that even the certificate issued by the Bombay Hospital confirms the defect but ::: Downloaded on - 09/06/2013 14:43:01 ::: 11 with a clarification that at present the Petitioner does not have a vision problem and can perform his duties. The Medical Boards including the Review Medical Board have recorded findings which are based upon the expert opinion and it is not even the plea before us that the said opinion is not formed in accordance with the Defence Service Regulations and the procedure prescribed for conducting the medical examination.
10. In the case of Sanjay Kumar vs The Director General of Police and another, Writ Petition No. 17150 of 2005 dated 19th October 2006, a Bench of Delhi High Court while refering to the judgment of the Supreme Court in Controller of Defence Accounts (Pension) and Others vs S. Balachandran Nair, AIR 2005 SC 4391, further clarified the view that the report by a Civil Surgeon cannot get precedence over the findings recorded by the Medical Board. Such matters would be beyond the scope of the judicial review unless and until some extra ordinary special circumstances were shown by the Petitioner to question the correctness of the report of the Medical Board.
::: Downloaded on - 09/06/2013 14:43:01 ::: 1211. The Petitioner has not questioned the correctness of the findings of the Medical Board on any reasonable or plausible grounds.
The authorities have come to a conclusion which cannot be said to be arbitrary or perverse. As far as the plea of discrimination is concerned, the Petitioner has referred to one Suresh Kumar who, according to him, suffers from the same defect and has been cleared by the Review Medical Board at R & R Hospital, Delhi and is undergoing the training at Dehradun. This averment has been denied vaguely by the Respondents. However, there is no specific reference to this case. During the course of hearing, the learned Counsel appearing for the Union of India denied such a fact. Be that as it may, it is not for this Court to accept the plea of discrimination in face of the expert evidence placed by the Respondents on record. It is for the authorities to determine as to who is or is not medically fit for retention or continuation in the Force.
12. For these reasons, we find no merit in this Writ Petition and would decline to interfere in exercise of the jurisdiction vested in the Court under Article 226 of the Constitution of India. However, it will be for the Respondents to examine the matter from the point of ::: Downloaded on - 09/06/2013 14:43:01 ::: 13 view that if such other similarly situated persons as referred by the Petitioner have been permitted to join, the case of the Petitioner be considered accordingly. We make this observation without granting any relief to the Petitioner as such. Writ Petition dismissed. Rule discharged. No order as to costs.
ig CHIEF JUSTICE
S.C. DHARMADHIKARI, J.
uday/judgment09/wp2821-08draft
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