Calcutta High Court (Appellete Side)
Sumit Kumar Giri vs Union Of Inida And Others on 28 February, 2017
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 26398 (W) of 2016
Sumit Kumar Giri
Vs
Union of Inida and Others.
For the petitioner : Mr. Biswaroop Bhattacharya, Advocate
Ms. Reshmi Ghosh, Advocate
Ms. Surasri Baidya, Advoate
For the Union of India : Mr. Anirban Mitra, Advocate
Heard on : 09.01.2017, 25.01.2017, 10.02.2017.
Judgement on : 28.02.2017
Sambuddha Chakrabarti, J.:
The petitioner applied for the post of Soldier Clerk in the Indian Army. After qualifying in the physical test he appeared at the medical test where he diagnosed with tympanosclerosis bilateral and was declared unfit for the job.
After being so diagnosed by the Medical Board of the army, he approached to Purba Midnapore District Hospital, Tamluk and subsequently, the Medical College and Hospital Kolkata. The petitioner claims that he had been declared fit.
The petitioner alleged an ulterior motive on the part of the army authorities in declaring him medically unfit. The Medical Review Board has also been characterized as making wrong assessment and diagnosis. The medical tests conducted by the Indian Army have been diagnosed as farcical and motivated. According to them, they are not suffering from any of the disabilities and the hospitals had turned down the diagnosis made by the Medical Review Board conducted by the Indian Army. The petitioner made reference to the interim directions passed by this Court in various writ petitions including the one directing the Superintendent of SSKM Hospital to constitute an appropriate panel of doctors to look into the matter. Based on that the petitioner has prayed for an order directing the respondents to allow them to appear in the written test and to accept the medical reports issued by the Government Hospitals and for other ancillary reliefs.
The issues sought to be raised by Mr. Bhattacharya ultimately, if to be expressed in the shortest possible canvas, boils down to which of the two sets of certificates are to be accepted for recruitment as soldier in the Indian Army. Based on the certificate issued by the doctor of the government hospital it has been very strenuously argued that the findings and the diagnosis made by the army doctors are not to be accepted and the disqualification found by the respondents in respect of each petitioner must yield to the findings reached by the government hospitals.
One is not required to search the answer for long if a very basic and fundamental aspect is kept in mind. Standard of medical fitness for the purposes of recruitment are variable and differ from service to service, from employment to employment, from the duties one is to discharge from the other. The standard of fitness is thus a job-specific one. A person found medically fit for discharging a civilian duty may not be so found for another employment where the standard of physical fitness are more exacting and rigorous. He may not be necessarily fit for discharging the duties of the army and fight battle in the war front. It goes without saying that for incumbents in the latter class of employments the standard is not only far more rigorous, a candidate will have to meet far more demanding levels of physical and medical fitness. A person found fit to work as a teacher or for performing a desk job or to be engaged in a research activity may not be required to meet the standards required for other jobs of strenuous physical activity. A person medically found fit for a sedentary nature of work may not be qualified for a football tournament. Even in sports, a person found fit for one game may not be considered fit enough for mountaineering. The perfection of reflex and eye sight expected of a pilot operating an aircraft may not be insisted upon in respect of persons in other employments.
It is not known, and the petition makes no reference to it, whether the petitioner had intimated the doctors of the government hospital that he had applied for recruitment as soldier in the Indian Army. The certificate issued by the government hospital nowhere say in respect of any of the petitioner that he is medically fit to join the army as soldier. It is quite possible that the standard of fitness employed by the doctors at the government hospitals was not for declaring somebody fit for soldiers in the army. It also does not appear that the doctors were ever shown the certificate of unfitness issued by the army doctors. The government hospital's certificate makes no reference to him. Thus the assertion in paragraph 14 of the writ petition that the government hospitals had turned down the diagnosis made by the medical review conducted by the Indian Army is incorrect. In some of the cases I find that the findings made by the Army Medical Board have not been specifically addressed by the doctors of the civilian hospitals.
Finding somebody fit for daily activities and for discharging the normal duties under normal circumstances may not answer the requirement of medical fitness of a soldier in the army. The criteria must be very different.
Without the slightest disrespect to any member of medical fraternity it is quite possible that many doctors may not be aware of the varying standards of medical fitness required for different jobs. There is nothing unusual in it. All members of the medical profession are neither expected nor is it possible for him to be conversant with the standard of medical fitness in every employment or calling. The doctors attached to the Indian Army have to discharge this function very regularly and they are in normal course of his employment alive to the standard such candidate will have to meet to be eligible for recruitment as a soldier. Therefore, the opinion expressed by them under normal circumstances has to be accepted unless, of course, the petitioner succeeds in establishing mala fide or malice or absolute false finding by the army doctors. The petitioner had all been examined twice - once originally and for the second time by the Review Medical Board. I have nothing to dispute the opinion expressed by the two Medical Boards finding the petitioner permanently unfit for the job.
The petitioner had asserted that the respondents had deliberately found him medically unfit with the motive not to recruit the petitioner in the Indian Army. A statement without anything more and as sweeping and vague as that is not sufficient to substantiate any deliberate or motivated act on the part of the respondent in not selecting the petitioner. In the case of Dr. J. N. Banavalikar Vs. Munilal Corporation of Delhi, reported in AIR 1996 SC 302, the Supreme Court stressed the need for providing necessary particulars to substantiate the allegation of mala fide. The onus to establish that the respondents acted with ulterior motive is entirely on the petitioners, as held by the Supreme Court in Ahmedabad Urban Development Authority Vs. Monilal Gordhandas, reported in AIR 1996 SC 2804. Here the petitioners have failed miserably. There is nothing even to suggest, far less establishing, that the respondents had any motive behind declaring the petitioner medically unfit.
In the case of State Bank of India Vs. G. K. Deshak, reported in AIR 1993 SC 2447, a similar question as in the present one cropped up for consideration before the Supreme Court. There the respondent had applied for the post of clerk of the State Bank of India. Although he qualified in the written examination and the interview he was found to be suffering from serious eye trouble and was subjected to more than one medical test. Ultimately, he was found medically unfit. He filed a writ petition in the High Court asserting his medical fitness and entitlement for appointment. The writ petition was allowed by the High Court. In appeal a three- Judge Bench of the Supreme Court observed that the medical opinion clearly indicated the defect in his eyes and he was unfit for the post. The reasons given in the impugned judgment indicated that the High Court took upon itself to decide the question of medical fitness of the respondent and on reaching a conclusion in favour of the respondents, preferred the same as against the medical opinion of the specialist doctors. The Supreme Court noted it as significant that it was not suggested on behalf of the respondents that the authorities of the bank had acted mala fide or with any malice against the respondent. The Supreme Court did not approve the approach adopted by the High Court in allowing the writ petition.
If one reads carefully the observations made in the above judgment it appears to be loud and clear that the Supreme Court did not approve the way the High Court had declared fitness of the candidate who has already been found medically unfit to hold the concerned post. What has been observed by the Supreme Court about the absence of any mala fide or malice on behalf of the bank authorities also holds good in the present case. A vague and indefinite allegation of motive and deliberate action of the respondent notwithstanding, the same is patently unacceptable unless the petitioner specifically substantiate the same.
Mr. Bhattacharya relied on the case of Union of India and Others Vs. Rajpal Singh, reported in (2009) 1 SCC 2016. There the respondent who was a Junior Commissioned Officer was declared of low medical category and was discharged from service on the recommendation of the Release Medical Board. He contended that he could not be discharged without the recommendation of the Invalidating Board as provided in the Army Rules. The appellants contended that the respondent's case was covered by the residuary provision in Clause I (iii) of the concerned table. The army order contemplated that employment of permanently low medical category personnel is subject to the availability of suitable alternative appointments commensurate with their medical categories and also subject to the condition that such a sheltered appointment can be justified in the public interest.
This judgment is basically on the interpretation of the army order and the Supreme Court had held that the concerned army order came into operation after an opinion had been formed as to whether a particular personnel was to be retained in service or not. If a person is to be retained in employment despite his low medical category for a particular period, the question of subjecting him to the Invalidating Board may not arise. But if he is to be discharged on the ground of medical unfitness he has to be discharged as per the procedure laid down in Clause I (ii).
This judgment has obviously no application to the facts of the present case. The petitioner is not questioning the procedural irregularity as contained in the army order. He has not joined service as yet and as such the question of retaining him in service or discharging him does not arise. Therefore, there is no question of re-categorization of the petitioner in terms of his medical status. However, the judgment contains an observation which squarely goes against the case of the petitioner. The Supreme Court had specifically observed that fitness of the personnel of army forces at all levels is of paramount consideration and there cannot be any compromise on that score. This observation clearly suggests that once a candidate is considered unfit for service the court will not approve any compromise on the question of fitness.
Mr. Bhattacharya next relied on the case of Lieutenant Colonel K. D. Gupta Vs. Union of India, reported in AIR 1988 SC 1178. This judgment also does not help the petitioner in any manner. This was a case where the petitioner was subjected to frequent psychiatric examinations without any real justification and was re-categorized in terms of his medical fitness. Considering the facts of the case and all the aspects involved in it, particularly the allegation of prejudicial approach developed against him in the head quarter without any justification and the fact that he had been unduly subjected to psychiatric examination from time to time, the Supreme Court, in order to remove the apprehension of bias from the mind of the appellant, directed the examination of the appellant by a specially constituted board with only one outsider as the Chairman. The Additional Solicitor General appearing for the respondent had agreed as a special case to the constitution of board of psychiatrists. Consequently, a three- member board was constituted of which two doctors were from the army.
From this, the petitioner cannot obtain any mileage. The interim order passed in some other writ petitions about the constitution of a board entirely excludes the presence of the army doctors. Secondly the appellant in the reported judgment was subjected to frequent psychiatric examinations which had given rise to his mind a reasonable apprehension about the existence of bias which is not so in the present case. It has already been noted that the petitioner could not substantiate, despite tall claim, anything about the alleged motive against him. Thirdly and most importantly, the petitioner cannot rely on this judgment for any purpose. The Supreme Court had directed that this case may not be taken as a precedent. Their Lordships liked the discipline of the defence department to be maintained by itself in the interest of the nation. This was obviously done as a special case on the consent given by the respondents. Here, no consent is forthcoming.
Mr. Bhattacharya also played the unemployment card. The petitioner is unemployed people and, therefore, he deserves a more lenient treatment. If the underlying prayer of Mr. Bhattacharya was for relaxation of the standard of medical fitness also the court plainly has no such power to do so, particularly, when the matter ultimately relates to defence of country. That apart, the petitioner has been found medically unfit for the jobs of soldiers in the Indian Army and not for other jobs where he may not have to meet the rigorous standard of medical fitness. Moreover, candidates by whom such posts may be filled up are also equally unemployed youths.
Mr. Bhattacharya further prayed for a direction upon the government hospital for constitution of a medical board for assessing the fitness of the petitioner as has been done in W.P. No. 24903 (W) of 2016 (Annexure - P-8). That was obviously done by way of an interim measure. This cannot be the direction of the court while disposing of the writ petition finally. It was an interim order without finally deciding the rights of the parties or laying down any principle of law to be followed in such cases. Mr. Bhattacharya has produced before me a copy of the members the Board constituted by the SSKM hospital pursuant to the interim order in the other writ petition. I do not find that such an omnibus board comprising specialists from different departments is necessary to be constituted in the facts of the present case.
Thus, I find the writ petition to be devoid of all merits calling for no judicial intervention.
The writ petition is dismissed.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee