Patna High Court - Orders
The Union Of India vs Sumangal Kumar on 23 December, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.857 of 2014
In
Civil Writ Jurisdiction Case No. 11463 of 2013
======================================================
1. The Union Of India through the Secretary, Department of
Armed Forces, Govt. of India, New Delhi
.... .... Appellant
Versus
1. Sumangal Kumar S/o Sri Prabhash Pandey Resident of
Village- Sabikpur, P.O- Damodarpur, P.S and District-
Lakhisarai, PIn- 811311
2. The Director Recruiting army Selection Office, Gaya Pin-
823001.
3. The Directo General of Medical Services, DGMS/ 38, ADS
Branch Block, Army Head quarter New Delhi, Pin-
110001.
4. Dr. J.P. Dwivedi, Department of E AND T, Army Hospital,
Namkun, Ranchi.
5. The State of Bihar, Through the District Magistrate,
Lakhisarai.
.... .... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Rana Randhir Singh, Advocate
For the Respondents: Mr. Arun Kumar, Advocate
CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH
CAV ORDER
(Per: HONOURABLE MR. JUSTICE SAMARENDRA
PRATAP SINGH)
7 23-12-2014The instant appeal is preferred against the order, dated 24.03.2014, passed in C.W.J.C. No. 11463 of 2012, whereby a learned single Judge of this Court has allowed the writ petition of the respondent No. 1 herein seeking direction for his appointment to the post of Soldier Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 2 (GD) in the Army on the ground that he had been, later on, declared medically fit. The learned single Judge further observed, in the order, dated 24.03.2014, aforementioned, that this order will not be treated as precedence.
2. Before we examine the validity of the order of learned Single Judge, assailed in this appeal, it would be necessary to indicate the facts of the case in brief.
Pursuant to advertisement contained in Annexure-1, the Army Recruitment Office, Gaya, conducted a recruitment rally during the month of December, 2010. The writ petitioner participated in the recruitment rally conducted by Army Recruitment Office, Gaya. He was declared unfit for disability 'BOW LEGS and PES CAVUS' during the medical examination conducted at the rally site on 16th December, 2010. However, in the review medical examination at the Military hospital, Gaya, he was declared fit. Consequently, he participated in the written examination (CEE) in April, 2011, and was selected for enrolment. After verification of the documents and other credentials, he was called for enrolment and despatch to the training centre. As the duration between initial medical examination and enrolment for despatch for training exceeded more than a period of 180 days, he was, in terms of the Army's recruitment policy, asked to take re-medical Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 3 examination. On re-examination, he was detected having Wax problem/ Otomycosis. Since the petitioner did not fall within the category of permanent disability, he was permitted to appear for re-medical examination within 42 days as per recruitment policy and norms by a specialist at assigned medical hospital, Namkum. The writ petitioner appeared for the review medical examination on 10.10.2011 and was declared unfit by classified Specialist (ENT). The writ petitioner, being aggrieved, filed a writ petition under Article 226 of the Constitution of India, on 11.02.2014, seeking the reliefs, which we have already indicated above. This writ petition gave rise to C.W.J.C. No.11463 of 2012. In the writ petition, the writ petitioner even disputed the stand of the respondents that he (i.e., the writ petitioner) was examined on 10th or 11th October, 2011, at Medical Hospital, Namkum. The learned single Judge directed the writ petitioner to be medically re- examined at Command Hospital, Lucknow. The petitioner was declared medically fit by the Command Hospital, Lucknow.
3. As the writ petitioner was declared medically fit by the Command Hospital, Lucknow, the learned single Judge directed the respondents to appoint him on the post of Soldier (GD) in the Army and that the recommendation Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 4 for the same shall be made preferably within a month. The learned single Judge, however, observed that the order may not be treated as precedence.
4. The appellant herein submits that the impugned order passed by the learned single Judge is, in the teeth of Recruitment Policy Compendium of JCO/OR- 2009 (which are annexed as Annexure-B and C to the supplementary counter affidavit filed by the respondents in the writ petition), not correct and legally valid. The appellant submits that as per paragraph 164 of the Recruitment Rules/Policy, a maximum period permissible for review of a temporarily unfit candidate would be 42 days and for a permanent unfit candidate, the period is 21 days. However, the re-medical examination of the writ petitioner was ordered by the Court after a period of two years, which is against the recruitment policy and may give rise to a number of litigations. Further-more, as per paragraph 104W of Recruitment Policy, the review medical examination is carried out at affiliated Medical Hospital and is considered final. As per paragraph 187 of the Recruitment Policy, after review by the Medical Appeal Board, the candidate would have no further right to medical review. The fact that Army's relevant recruitment policy does envisage, as contended by the respondents, has not Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 5 been in dispute.
5. Coupled with the above, it is the further case of the appellant that the age limit, for enrolment in the Army, on the post of Soldier (GD), is between 17 ½ and 21 years, whereas the writ petitioner-respondent No. 1 in March, 2014 itself, much prior to the passing of the order of learned single Judge, had crossed the age of 23 years.
6. The case of the writ petitioner-respondent No. 1 before this Court as well as before the learned single Judge has been that he was not put to any medical examination, on 10.10.2011, at Military Hospital, Namkum, and that he, again, visited the said Hospital on 11.10.2011, but no doctor (according to what the writ petitioner- respondent No. 1 herein claims) examined him and, thereafter, according to the writ petitioner-respondent No. 1 herein, he went to the said Hospital, on 12.10.2011, but this time, too, he was not put to medical examination. The writ petitioner-respondent No. 1 herein submits that at the time when he was selected for being sent on training, he was not over aged and the respondents authorities have failed, in their duty, to conduct the medical review test within time, i.e. within 10.10.2011 and, hence, the respondents authorities cannot take advantage of its own delay in undertaking medical examination of the writ Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 6 petitioner-respondent No. 1 herein.
7. Learned counsel for the writ petitioner- respondent No. 1 herein submits that the writ petitioner- respondent No. 1 herein ought not to have, otherwise also, disqualified on ground of overstepping the age. Learned Counsel for the writ petitioner-respondent No. 1 herein submits that the writ petitioner-respondent No. 1 herein had been suffering from otomycosis, which is superficial fungal infection of the outer ear canal and, as such, he could not have been declared medically unfit for the post of Soldier (GD).
8. What, now, needs to be noted is that the writ petitioner-respondent No. 1 herein participated in the Recruitment Rally in December, 2010, for the post of Soldier (GD) conducted by the Army Recruitment Office, Gaya. Initially, he was declared unfit; however, during review medical examination at Military Hospital, Gaya, he was declared fit. Thereafter, he cleared his written examination, in April, 2011, and was selected for enrolment. The process of verification of documents and credentials of selected candidates, including writ petitioner- respondent No. 1 herein, were, then, undertaken. However, more than a period of 180 days having passed between the last medical review examination and despatch to training Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 7 centre, the writ petitioner, in terms of the policy of recruitment, as envisaged by para 195 of the Recruitment Compendium, was put to medical examination. Before sending the writ petitioner-respondent No. 1 herein to the training centre, he was medically examined in terms of para 195 of the Recruitment compendium and On medical examination, the writ petitioner-respondent No. 1 herein was detected with Wax problem/ Otomycosis, which was a temporary ailment and was allowed to appeal for review medical examination within 42 days by Specialist at assigned Medical Hospital, Namkum, in terms of para 164 of the Recruitment Rules annexed as Annexure-D to the supplementary counter affidavit in the writ petition. As per paragraph 104W of the Recruitment Policy, annexed as Annexure-E, the review medical examination carried out, at affiliated Medical Hospital, was to be considered final and after review examination, the candidate was to have no right for further medical review.
9. The petitioner is not in a position to deny the existence of Recruitment Policy contained in Annexures- D, E and F to the supplementary counter affidavit in the writ petition. However, the defence of the writ petitioner- respondent No. 1 herein is two fold; firstly, he submits that though he was present in Medical Hospital, Namkum, on Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 8 10.11.2011, no doctor conducted any medical examination. It is difficult to accept the writ petitioner's contention as the appellant has produced the original record of the writ petitioner's medical examination, which took place, at Namkum Hospital, on 10.10.2011. One Col. J.P. Dwivedi, classified specialist ENT, certified that the writ petitioner had been suffering from 'otomycosis' in the left ear. Even the learned single Judge, while allowing the writ application, nowhere, in his order, has come to a finding that there was no medical examination of the writ petitioner at Military Hospital, Namkum, on 10.10.2011 or 11.10.2011. Further, the factual dispute, whether writ petitioner was examined medically on 10.10.2011 or not, cannot be gone into and decided in the writ jurisdiction. Any such determination would require taking down of evidence and holding of roving enquiry, which was neither appropriate nor necessary in the context of the facts of the present case. Thus, the plea of the writ petitioner- respondent No. 1 herein that he was not examined, on 10.10.2011, at medical hospital, Namkum, cannot be accepted and is accordingly rejected.
10. Now, we would examine the other submission of the writ petitioner-respondent No. 1 herein that infection, in question, was fungal and temporary and Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 9 the writ petitioner-respondent No. 1 herein ought not to have been declared unfit.
11. We find from the communication, dated 25.11.2014, of A. K. Singh, Col Dir MS(PS) for DGMS (Army), that Otomycosis is a fungal ear infection of the outer ear canal and the infection is treatable with antibiotics. On examination, on 10.10.2011, at Military Hospital, Namkum, the writ petitioner-respondent No. 1 herein was declared unfit as his TM (Tympanic membrane) i.e. ear drum, could not be visualized due to presence of ear discharge, which was due to otomycosis. As per recruitment policy, no candidate should be enrolled, who suffers from any of the following defects:
"Deafness, aural discharge,
perforation of tympanic membrance,
dermatitis of the meatus (eczemateous or
desquamative); conditions which after
removal of cerumen prevent a through
examination of the drum i.e. atresia of the meatus, exostosis and other neoplasms;
conditions giving a history of recurrent earache, tinnitus and vertigo".
12. It cannot be said that the petitioner did not suffer substantially from the disabilities quoted above, Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 10 which was a disqualification for selection. It is evident from what has been indicated above that the writ petitioner's examination could not take place, on 10.10.2011, because of the fact that he was suffering from otomycosis and as per policy of the appellant, contained in Annexure-D, E and F to the supplementary counter affidavit filed in the writ petition, the maximum period permissible for correction of temporary unfitness is 42 days and permanent unfitness is 21 days. The policy of recruitment, in the context of medical examination, was never under challenge in the writ petition. The writ petitioner-respondent No. 1 herein did not become medically fit within the time prescribed under review medical test.
13. In our considered view, the learned single Judge erred in directing re-medical examination after more than two years of the medical examination, when the relevant recruitment policy requires examination within 42 days. The matter would have been different if the delay would have occurred on the part of the appellant in conducting review medical examination of the writ petitioner or if the medical examination was otherwise a farce, which is not the situation in the instant case.
14. In the result, the impugned order, dated 24.03.2014, passed, in CWJC No.11463 of 2012, by the Patna High Court LPA No.857 of 2014 (7) dt. 23-12-2014 11 learned single Judge, is not sustainable in law and is accordingly set aside. This appeal stands accordingly allowed.
(Samarendra Pratap Singh, J.) I. A. Ansari, J.: I agree.
(I. A. Ansari, J.) Md.Jamaluddin Khan/AFR U