Delhi High Court
Jonu Tiwari vs Union Of India Ors on 6 August, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 6th August, 2020
+ W.P.(C) No.4456/2020
JONU TIWARI .... PETITIONER
Through: Mr. Vikas Kochar & Mr. O.P.
Bhadani, Advs.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. Nirvikar Verma, Adv. along with
Wing Commander B. Mishra.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
1. The petitioner, a candidate for recruitment as Airmen in Group 'X'
and 'Y' category of the respondents Indian Air Force (IAF) and having been
found unfit by the Medical Board as well as the Appeal Medical Board, on
account of "Varicocele (Left)", has filed this petition, (i) for a direction to
the respondents IAF to produce complete record of the case; (ii) seeking
quashing of the findings dated 10th January, 2020 of the Medical Board and
dated 5th February, 2020 of the Appeal Medical Board; (iii) seeking
mandamus to the respondents IAF to conduct re-medical examination of the
petitioner at any designated military hospital; and, (iv) seeking mandamus
for selection of the petitioner as Airmen, if found medically fit.
W.P.(C) No.4456/2020 Page 1 of 13
2. The petition came up first before this Court on 23rd July, 2020, when it
was the plea / contention of the plaintiff that, (i) the Appeal Medical Board
did not even medically examine him; (ii) the decision of the Appeal Medical
Board was not informed to him; (iii) he had undergone a surgical procedure
between examination by the Medical Board and Appeal Medical Board, for
correction of the 'Varicocele' but the impact thereof has not been assessed;
(iv) even the Manual of Medical Examinations and Medical Boards (IAP
4303 of September 2010, 4th Edition), in Para 4.3.18 thereof states that slight
degree of 'Varicocele' should be accepted; (v) no assessment of the degree
of 'Varicocele' has been done; and, (vi) else, the petitioner is meritorious,
having been placed at Serial No.86 in the merit list comprising of 4382
candidates.
3. In view of the aforesaid contentions, vide order dated 23rd July, 2020,
the counsel for the respondents IAF, appearing on advance notice, was
directed to produce before us the record of the Medical Board as well as of
the Appeal Medical Board qua the petitioner, including the medical tests, if
any, carried out and the degree of 'Varicocele' if any assessed, which the
petitioner was found suffering from. The counsel for the respondents IAF
was also directed to inform, whether the impact of surgery claimed to have
been undertaken by the petitioner before being examined by the Appeal
Medical Board was considered by the Appeal Medical Board.
4. In compliance of the above, the counsel for the respondents IAF has
filed before this Court documents pertaining to the primary medical
examination as well as appeal medical examination of the petitioner together
with the letter dated 29th July, 2020 issued by the Medical Advisor, Medical
W.P.(C) No.4456/2020 Page 2 of 13
Wing, Central Airmen Selection Board and the relevant extract of the
Manual of Medical Examinations and Medical Boards, IAP 4303, (4th
Edition : September 2010).
5. The counsel for the petitioner, when first appeared before us today,
stated that copies of the documents filed before us had not been supplied to
him. The matter, on the request of the counsel for the petitioner, was passed
over with direction to the counsel for the respondents IAF to supply all the
said documents to the counsel for the petitioner. Though on passover, the
counsel for the petitioner complained that the copy of the letter dated 29th
July, 2020 of the Medical Advisor, Medical Wing, Central Airmen Selection
Board had not been supplied to him but we verbally informed the contents to
the counsel for the petitioner and have heard the counsels.
6. The counsel for the petitioner, at the outset has contended that the
respondents IAF have not complied with the part of the earlier order dated
23rd July, 2020 requiring the respondents IAF to place before us the medical
tests if any carried out and the degree of 'Varicocele' if any assessed. It is
contended that in the documents produced, nowhere is the degree of
'Varicocele' from which the petitioner has been found to be suffering from,
determined or recorded. It is argued that the petitioner has now learnt that the
'Medical Directive I' requires the respondents IAF to determine and state the
degree of 'Varicocele' from which a candidate is found to be suffering.
7. However on enquiry, the counsel for the petitioner admits that the
petitioner, in the petition has nowhere pleaded the 'Medical Directive I', to
which reference is made and it is further stated that neither the counsel for
W.P.(C) No.4456/2020 Page 3 of 13
the petitioner nor the petitioner has seen any such 'Medical Directive I' and
are stating so on the basis of what they have been told.
8. The counsel for the petitioner has next drawn our attention to page 19
of the documents filed by the respondents IAF, to contend that therefrom it is
evident that the Appeal Medical Board had advised a "USG colour Doppler
Inguinoscrotal region" test to be done on the petitioner but from page 16 of
the documents aforesaid, it is evident that the test which was done was "USG
No.1916 - CH(EC)" which is not the same as the test which was advised.
Attention is next invited to the Outpatient Department (OPD) Record dated
5th June, 2020 of District Hospital, Agra, Annexure P-8 to the petition, with
the opinion of General Surgeon, District Hospital, Agra "No Varicocele at
present as a clinically and colour Doppler also shows that which was done on
04/06/2020". It is argued that there is thus a divergence of opinion, with the
General Surgeon of District Hospital, Agra opining on 5th June, 2020 that the
petitioner did not have any 'Varicocele' and the Medical Board and the
Appeal Medical Board of the respondents IAF on 10th January, 2020 and 5th
February, 2020 respectively, opining presence of 'Varicocele (Left)', with
the Appeal Medical Board also reporting 'local inflammation'. It is
contended that in view of the said divergence of opinion, a case for referring
the petitioner for another medical opinion is made out.
9. Per contra, the counsel for the respondents IAF has drawn attention to
page 24 of the documents filed by him, being the extract of the Manual of
Medical Examinations and Medical Boards, IAP 4303, (4th Edition :
September 2010) which, in Clause 4.3.6 provides as under:
W.P.(C) No.4456/2020 Page 4 of 13
"4.3.6 During abdo minal examination note will be made of any hepatic or
splenic enlargement. Look for hemorrhoids, condylomata, presence of hernia
or undescended testis, hydrocele, bubonocele, varicocele or any other
swelling of the scrotum. These will be causes for rejection"
Attention is next drawn to paragraph 4(j) of the petition where the
petitioner has pleaded on oath that he was not thoroughly tested by the
Appeal Medical Board and was declared unfit based upon the previous
medical record of the Medical Board, inspite of repeated requests of the
petitioner, to carry out thorough medical checkup and that the respondents
IAF did not pay heed to the same. It is argued that the documents filed by
the respondents IAF, and which are not disputed by the counsel for the
petitioner and rather on which the counsel for the petitioner has relied, show
that the Appeal Medical Board conducted a thorough checkup of the
petitioner including of ultrasonography (USG). It is argued that thus the
petitioner got notice of this petition issued by indulging in falsehood.
Attention in this context is also drawn to the application pleaded by the
petitioner to have been preferred by him for Review Medical Board, filed as
Annexure P-11 to the petition, and it is pointed out that the petitioner therein
also has admitted that the specialist doctor of the Appeal Medical Board
examined him and conveyed to the petitioner on 5th February, 2020 that the
petitioner was unfit. It is argued that false pleadings in this respect also have
been made in the petition. It is contended that had the petitioner pleaded the
correct facts as are now admitted, there would have been no ambiguity for
this Court to have entertained the petition. Attention is also drawn to the
application for Review Medical Board, where the petitioner has admitted that
though he was asked to collect the report of the Review Medical Board but
W.P.(C) No.4456/2020 Page 5 of 13
because of being devastated on being informed that he was unfit, did not go
to collect the same. It is argued that on the contrary before this Court, it was
argued on 23rd July, 2020 that the decision of the Appeal Medical Board was
not informed to the petitioner.
10. The counsel for the respondents IAF has further argued that in none of
the grounds taken in the petition has any challenge been made to the reports
of the Medical Board or the Appeal Medical Board or any defect therein
pleaded. Attention is drawn to page 18 of the documents filed by the
respondents IAF containing the thumb mark of the petitioner against the
proceedings of 5th February, 2020 before the Review Medical Board. The
counsel for the respondents IAF has also invited our attention to Annexure
P-7 to the petition, being the Certificate dated 26th January, 2020 of the
Consultant Surgeon of J.K. Hospital, Agra consulted by the petitioner, to the
effect that the petitioner was operated for 'Left Varicocele under Spinal
Canal' on 16th January, 2020 and that 'he is fit to join his duty and has been
cured completely after the operation'. It is contended that none of the
documents of the hospitals otherwise consulted by the petitioner also state
the degree of 'Varicocele' which the petitioner was suffering from. With
respect to the judgments (i) dated 22nd February, 2019 in CWP
No.21081/2016 (O&M) titled Yogesh Vs. Union of India; and, (ii) dated
22nd November, 2019 in CWP No.34117/2019 (O&M) titled Sumit Vs.
Union of India, of the High Court of Punjab & Haryana, relied upon by the
petitioner in the petition itself, it is contended that not only are the said
judgments of a Single Judge but this Bench in judgment dated 15th July,
2020 in W.P.(C) No.3930/2020 titled Preeti Yadav Vs. Union of India and
in judgment dated 29th July, 2020 in W.P.(C) No.3626/2020 titled Nishant
W.P.(C) No.4456/2020 Page 6 of 13
Kumar Vs. Union of India has held to the contrary and thus the judgments
of the Single Judge Bench of the Punjab & Haryana High Court are of no
avail. Lastly, attention is drawn to Clause 3.6.7 of Manual of Medical
Examinations and Medical Boards, IAP 4303, (4th Edition : September 2010)
as under:
"3.6.7. Hydrocele or Varicocele. These should be properly treated before
fitness is considered. Minor degree of Varicocele should not entail
rejection."
to contend that the same also prescribes that 'Varicocele' has to be properly
treated before fitness is considered and the Appeal Medical Board found the
petitioner, inspite of surgery claimed to have been undertaken, to be even
then suffering from 'Varicocele (Left)' and also having swelling in the
scrotal region. It is contended that Manual of Medical Examinations and
Medical Boards, IAP 4303, (4th Edition : September 2010) is advisory in
nature and ultimately it is for the doctors of the respondents IAF, which the
petitioner is to serve, who have to take a decision with respect to medical
fitness, considering the nature of duties and the places at which such duties
have to be performed, to be performed by the petitioner, once recruited.
11. The counsel for the petitioner has in rejoinder contended that the
Appeal Medical Board has not considered the surgery undertaken by the
petitioner and that the judgments of the High Court of Punjab & Haryana
though of a Single Judge Bench, refer to a Division Bench judgment dated
24th October, 2016 of this Court in W.P.(C) No.9239/2016 titled Vikash Vs.
Union of India.
12. We have considered the rival contentions.
W.P.(C) No.4456/2020 Page 7 of 13
13. With the documents produced by the respondents IAF, the contentions
of the petitioner as made on 23rd July, 2020 and as recorded in the order of
that date, that the Appeal Medical Board did not even medically examine the
petitioner, that the decision of the Appeal Medical Board was not informed
to the petitioner and that the impact of the surgery claimed to have been
undertaken by the petitioner was not assessed by the Appeal Medical Board,
do not survive. Rather, it is indeed found that the petitioner, while
approaching this Court did not represent the facts correctly and as also borne
out from the documents which the respondents IAF have produced.
14. That leaves the contention of the counsel for the petitioner with
respect to the degree of 'Varicocele'. The petitioner in this context relies on
Clause 3.6.7 reproduced above as well as Clause 4.3.18 as under:
"4.3.18. Acceptance of candidates detected to have minor defence/disabilities
are to be assessed in relation to their effect on function. Minor
degrees of defects as under can be accepted.
(a) Slight degree of Varicocele.
(b) Minor degree of Knock-Knees, bow legs and hammer toes,
(Standard given in Section III Chapter 9 will apply)
(c) Any other minor defects, which in the opinion of the RMO will
not interfere with the efficient performance of Air Force duties."
of the Manual of Medical Examinations and Medical Boards, IAP 4303, (4th
Edition : September 2010). The Medical Advisor of the Medical Wing of the
Central Airmen Selection Board, in his letter dated 29th July, 2020, in this
context has inter alia stated as under:
W.P.(C) No.4456/2020 Page 8 of 13
"AF NET:7240/7242
Medical Wing
Central Airmen Selection Board
Brar Square
Delhi Cantt.-110010
CASB/1001/1/Med 29 Jul 20
O IC Legal Cell
COURT CASE : WP(C) NO.4456/2020 FILED BY JONU TIWARI VS UOI &
ORS BEFORE THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI
1. ................
2. ...............
3. Further, if the petitioner has minor degree of Varicocele, specialist will
mention the term clearly i.e. minor / slight. In the present case specialist has given
opinion based on the report of ultrasonography which was conducted at Command
hospital (EC), Kolkata and opined as "Varicocele (Lt) present with local
inflammation, USG scrotum No.1916 dated 03 Feb 20 shows Varicocele (Lt)
Unfit for Varicocele (Lt)" (copy annexed). Hence the opinion of specialist is
Varicocele (Lt) with local inflammation and cause for rejection as per para 4.3.6 of
IAP 4303 (IVth Edition) (copy annexed).
4. The candidate's claim of having undergone surgery for Varicocele (Lt) in
civil hospital is not valid as the specialist at Command hospital (EC), Kolkata had
opined him unfit on the basis of ultrasonography of scrotum. It may be noted that
opinion given by specialist is based on medical condition of the candidate on that day
and in accordance with medical standards and policies of recruitment medical
examination. Further intimated that the opinion of the civil specialist can neither be
taken into consideration nor can it be made binding for selection in the Armed
Forces. The same is mentioned in "Certificate by Candidate Prior to Recruitment
Medical Examination" signed by the petitioner (copy annexed).
5. ...............
Sd/-
(J.S. Wagle)
Gp Capt
Medical Advisor"
W.P.(C) No.4456/2020 Page 9 of 13
15. We are satisfied with the aforesaid explanation, particularly because
none of the medical prescriptions relied upon by the petitioner also mention
the degree of 'Varicocele'. We may mention that none of the clauses of the
Manual aforesaid relied upon by the petitioner also require the degree of
'Varicocele' to be determined or lays down upto what degree 'Varicocele' is
to be treated as minor and acceptable and beyond which it is unacceptable.
The Manual also uses the words 'minor' and 'slight' and requires the effect
thereof to be assessed in relation to function. We can well envisage that
what may be considered as 'minor' or 'slight' may have a major effect on the
functions required to be performed. None of the private medical practitioners
consulted by the petitioner, and on the basis of whose opinion the petitioner
challenges the opinion of the doctors / specialist of the respondents IAF,
were / are in a position to judge the effect of the 'Varicocele' on the function
which the petitioner, once recruited, would be required to perform as an
Airmen. It is the doctors of the respondents IAF only, who also deal with
Airmen once recruited and are posted at the same places as the Airmen and
are aware of the varied duties which the Airmen are required to perform,
who by sheer experience and personal interaction with Airmen, can assess
the effect of the disability on the functions required to be performed.
16. We have in Priti Yadav supra, in judgment dated 27th July, 2020 in
W.P.(C) No.4558/2020 titled Sharvan Kumar Rai Vs. Union of India, in
Nishant Kumar supra and in judgment dated 22nd May, 2020 in W.P.(C)
No.3237/2020 titled Dhiraj Milind Dhurve Vs. Union Public Service
Commission, inter alia held that (i) fitness for serving requisite duties in the
Air Force is a matter of opinion and if in the opinion of the authorities
constituted under the Rules of the Air Force the petitioner is unfit, a report of
W.P.(C) No.4456/2020 Page 10 of 13
a medical practitioner of another organization which does not intend to
recruit the petitioner and which will not be affected by the medical unfitness
of the petitioner, cannot be the basis for interfering with the assessment by
the specialist of the Air Force; (ii) it cannot be lost sight of that just as in
justice delivery system, appeal provisions are provided to eliminate the
possibility of human error, so has the appeal remedy been made available in
the matter of medical examination at the time of recruitment in Air Force and
just like the decision making before the Courts cannot be indefinite, so can
the decision making with respect to medical fitness in the Air Force, be not
indefinite; (iii) there has to be a finality in decision making, as is there in the
justice delivery system; (iv) it cannot be lost sight of, that no mala fides are
attributed with respect to any of the medical examinations or with respect to
the team of medical professionals conducting the medical examination; (v) it
is the medical practitioners of the Defence Services who have themselves
undergone the rigours of the training and discharge the functions of the
organization, who are best suited to form an opinion as to the medical fitness
of the candidates to be recruited and once they have so formed their opinion,
there can be no interference therewith, at the mere asking of a
rejected/disgruntled candidate; and, (vi) candidates found medically unfit
cannot seek a change of the terms subject to which they have taken the
examination and which terms uniformly apply to all candidates; only a few
of all those found medically unfit, who approach the Court, cannot be
permitted another round of medical test.
W.P.(C) No.4456/2020 Page 11 of 13
17. With a large number of such cases coming before this Court, all
accompanied with opinions from private medical practitioners as well as
from doctors of the government hospitals, contrary to the opinions of the
Medical Boards / Appeal Medical Board / Review Medical Board of IAF,
have also made us wonder, what weightage is to be given to the opinion of
the doctor of the choice of the petitioner. We have been asking counsels,
whether the government hospitals, when approached to opine on a matter on
which the Medical Board / Appeal Medical Board / Review Medical Board
of the IAF has opined to the contrary, constitute a Medical Board comprising
of doctors selected by the hospital and the opinion of which Medical Board
comprising of impartial doctors, can be given weightage. No definite answer
has been given by any of the counsels. It appears that the candidates
intending to challenge the opinion of the Medical Board / Appeal Medical
Board / Review Medical Board of IAF, choose which doctor in the
government hospital to approach. Such procedure, of the seeker of medical
opinion choosing the doctor, does not inspire confidence, even if the doctor
concerned is employed in a government hospital and renders opinion on
printed stationary of the government hospital. Moreover as aforesaid, the
said doctors are not aware of the rigours which the person whom they are
certifying as fit, will have to perform / discharge.
18. The petitioner has failed to make out a case for us to entertain any
doubt about the correctness of the findings of the Medical Board or the
Appeal Medical Board of the respondents IAF or for reference of the
petitioner for yet another medical opinion. The arguments raised today and
as noted above are also without any basis and contrary to the pleadings on
oath earlier made. The opinion of the General Surgeon of the District
W.P.(C) No.4456/2020 Page 12 of 13
Hospital, Agra, chosen by the petitioner for seeking an opinion, is based on
the report of a Doppler test shown by the petitioner to him and which report
has not been filed by the petitioner. Rather, the Certificate dated 26th
January, 2020 of J.K. Hospital, Agra indicates that the surgery if any was
carried out at the said hospital and not at the District Hospital, Agra which
appears to have been approached just before filing this petition and for the
purposes of this petition, suspecting that the certificate of J.K. Hospital, Agra
will not carry any weight, and which District Hospital, Agra did not carry out
any tests of its own and appears to have given opinion on the basis of some
report of Colour Doppler Ultrasonography shown by the petitioner.
19. Dismissed.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. AUGUST 06, 2020 'gsr'..
W.P.(C) No.4456/2020 Page 13 of 13