Delhi High Court
Uttam Thakran vs Union Of India And Anr. & Anr. on 22 February, 2022
Author: Navin Chawla
Bench: Manmohan, Navin Chawla
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22.02.2022
+ W.P.(C) 1526/2022
UTTAM THAKRAN ..... Petitioner
Through Mr.Manish Kumar,
Mr.Shyambir Singh, Mr.Nakul
Jain, Ms.Hyyat Ahluwalia,
Advs.
versus
UNION OF INDIA & ANR. ..... Respondents
Through Mr.Ripudaman Bhardwaj,
CGSC, UOI with Mr.Kushagra
Kumar, Adv.
Colonel Manish Kumar, Sr.
Advisor Surgery, Base
Hospital, Delhi Cantt and Major
Partho Katyayan
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
The petition has been heard by way of video conferencing.
1. The present petition has been filed seeking quashing of the rejection letter dated 07.01.2022 (hereinafter referred to as the „impugned letter‟) vide which the petitioner‟s request for the grant of a Review Medical Board (in short, „RMB‟) has been rejected. The Signature Not Verified Digitally Signed By:SHALOO BATRA WP(C) No.1526/2022 Page 1 of 7 Signing Date:25.02.2022 18:06:10 petitioner further prays for a direction to the respondents to grant the petitioner an opportunity to appear before the RMB and if found fit, be allowed to join the 147th National Defence Academy-1 (hereinafter referred to as „NDA-1‟) course.
2. It is the case of the petitioner that pursuant to the Notification dated 30.12.2020 inviting applications to the National Defence Academy and Naval Academy Examination (I)-2021 (hereinafter referred to as „Notification‟), the petitioner applied for NDA-1. The petitioner, upon clearing both the written examination as well as the SSB interview, was called for his medical examination before the Special Medical Board (in short, „SMB‟) at Military Hospital, Jalandhar.
3. Vide the report of the SMB dated 14.10.2021, the petitioner was declared to be medically unfit on four counts, namely, 'ECG Abnormality', 'Genu Valgum', 'Varicose Veins Lt Lower Limb' and 'Colour Vision III'.
4. Aggrieved by the report of the SMB, the petitioner applied for examination before the Appeal Medical Board (in short, „AMB‟), wherein the petitioner was to be examined at Base Hospital, Delhi Cantt. by doctors in the orthopaedic, surgical, ophthalmology and cardiac departments.
5. Upon examination at the AMB stage, the petitioner was found to be medically fit on three of the four grounds against which the said appeal was filed, however, was still found to be medically unfit on the Signature Not Verified Digitally Signed By:SHALOO BATRA WP(C) No.1526/2022 Page 2 of 7 Signing Date:25.02.2022 18:06:10 ground of 'Varicose Veins Lt Lower Limb' vide report dated 29.10.2021.
6. The petitioner made a representation dated 20.11.2021 requesting for an opportunity to be medically re-examined by an RMB, however, the same was rejected by the respondent no. 2 vide the impugned letter.
7. The learned counsel for the petitioner submits that the impugned letter vide which the petitioner‟s request for an RMB has been rejected, is ex-facie illegal inasmuch as the Notification prescribes that varicose veins is not a permanent disability and the candidate may be declared fit provided six weeks have elapsed since the operation.
8. He further submits that as the petitioner had been declared medically fit for three of the four grounds against which an appeal was filed, the case warrants re-examination before the RMB to ascertain whether the petitioner is indeed suffering from varicose veins. He submits that the petitioner has also got himself examined through private doctors who have opined that the petitioner is suffering from very minor ailment and is otherwise fit for appointment in Army.
9. This Court, vide its order dated 25.01.2022, had directed the respondents to produce the original medical record of the petitioner on the next date of hearing. A doctor, who was a part of the AMB, was also directed to join the proceedings by way of an online link.
Signature Not Verified Digitally Signed By:SHALOO BATRA WP(C) No.1526/2022 Page 3 of 7 Signing Date:25.02.2022 18:06:1010. In pursuance of the above direction, today the respondents produced the original medical records of the petitioner. Colonel Manish Kumar, who had examined the petitioner during his AMB, was also present during the proceedings by way of an online link.
11. Colonel Manish Kumar informed the Court that the petitioner, at the stage of the AMB, was found to be medically unfit on the ground of 'Varicose Veins Lt Lower Limb'. He states that upon the conduct of a Colour Doppler Ultrasound, the petitioner was found to have varicosities and incompetent perforators in his mid-calf. He further explained that a patient of varicose veins, if subject to prolonged standing, can develop swelling of the lower limbs which could result in bleeding, eczema and infections among other ailments. He further placed reliance on the 'Manual on Medical Examination and Medical Standards for Entries into Army, TRG Academics and MIL Schools' dated 16.07.2019 (hereinafter referred to as the „Manual‟) to contend that varicose veins are a disqualification for appointment in the NDA.
12. We have considered the submissions made by the learned counsel for the petitioner as well as the learned doctor.
13. With respect to the contention of the learned counsel of the petitioner, that the respondents themselves do not consider varicose veins to be an abnormality and that the same thus cannot be a ground for rejection, we find that the clause relied upon by the learned counsel for the petitioner falls under the Chapter 'Medical Standards Signature Not Verified Digitally Signed By:SHALOO BATRA WP(C) No.1526/2022 Page 4 of 7 Signing Date:25.02.2022 18:06:10 and Procedure of Medical Examination for Officer Entries into Navy'. The petitioner admittedly had only applied for enrolment in the Indian Army; therefore, the said clause has no application.
14. On the other hand, Clause 96 of the Manual explicitly stipulates that the presence of varicose veins would be a ground of medical unfitness. The relevant extract is reproduced hereinbelow:
"96. VASCULAR SYSTEM.
(a) Varicose Veins.
UNFIT. Elongated, dilated, tortuous veins of the lower limbs including cases operated for varicose veins."
15. In Abhimanyu Mor vs. Union of India through Secretary Ministry of Defence & Ors.¸W.P. (C) 11243 of 2020, this Court has held that the conduct of a Review Medical Examination (in short, „RME‟) is not a matter of right but a matter of discretion. In the present case, both the SMB and AMB are unanimous on the petitioner suffering from varicose veins. Merely because the AMB found the petitioner fit on other counts for which the SMB had declared him unfit, in fact, shows the fairness of the procedure adopted by the respondents. RME is to be adopted primarily where there is a difference of opinion between the SMB and the AMB. As there was unanimity of the two boards, we find no infirmity in the decision of the respondents to deny holding an RMB for the petitioner.
16. This Court, in its decision dated 01.02.2022 in Yogita Yadav vs. Union of India and Ors., W.P. (C) 12858 of 2021 has held that the Signature Not Verified Digitally Signed By:SHALOO BATRA WP(C) No.1526/2022 Page 5 of 7 Signing Date:25.02.2022 18:06:10 purpose of an AMB is to ensure that there is no mistake committed at the stage of the SMB. It was further held that RMB is to be resorted to only in exceptional circumstances where there is a glaring inconsistency in the reports of the SMB and the AMB or for other such exception reasons, for otherwise, the recruitment process to the Armed Forces shall remain endless.
17. As far as the plea based on opinion of private doctors, this Court has repeatedly held that it is the doctors of the Forces who are well aware of the demands of duties and the physical standards required to discharge the same. This Court, in its judgment dated 21.12.2020, in Km. Priyanka vs. Union of India & Ors., W.P.(C) 10783 of 2020, has also as under:
"8. We have on several occasions observed that the standard of physical fitness for the Armed Forces and the Police Forces is more stringent than for civilian employment. We have, in Priti Yadav Vs. Union of India 2020 SCC OnLine Del 951; Jonu Tiwari Vs. Union of India 2020 SCC OnLine Del 855; Nishant Kumar Vs. Union of India 2020 SCC OnLine Del 808 and Sharvan Kumar Rai Vs. Union of India 2020 SCC OnLine Del 924, held that once no mala fides are attributed and the doctors of the Forces who are well aware of the demands of duties of the Forces in the terrain in which the recruited personnel are required to work, have formed an opinion that a candidate is not medically fit for recruitment, opinion of private or other government doctors to the contrary cannot be accepted inasmuch as the recruited personnel are required to work for the Forces and not for the private doctors or the government hospitals and which medical professionals are unaware of the demands of the duties in the Forces."Signature Not Verified Digitally Signed By:SHALOO BATRA WP(C) No.1526/2022 Page 6 of 7 Signing Date:25.02.2022 18:06:10
18. In view of the above, we find no merit in the present petition. The same is dismissed. There shall be no order as to cost.
NAVIN CHAWLA, J MANMOHAN, J FEBRUARY 22, 2022/AB Signature Not Verified Digitally Signed By:SHALOO BATRA WP(C) No.1526/2022 Page 7 of 7 Signing Date:25.02.2022 18:06:10