Mohd. Matauddin vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1486 Del

JUDGMENT

Swatanter Kumar, J.

1. The facts giving rise to the present writ petition fall within a narrow compass. The petitioner was recruited in Army at Bombay after he was subjected to medical check up by the Screening Board and had been found fit. The petitioner appeared in the Common Entrance Exam/Aptitude Test on 31.3.02. The petitioner joined his training at Bombay Engineering Group and Centre, Kirkee, Pune on 17.4.02. During his training, unfortunately, the petitioner suffered an injury at his face and ear which was reported to Major Prasanna, the training in charge. However, neither the petitioner sent for medical treatment nor he was discharged from training even temporarily. On 26.6.02 the petitioner had requested the authorities for sending him to medical treatment. The petitioner was sent to Command Hospital by the M.H. Kirkee, Pune for routine check up. He was admitted there for two days and discharged from the hospital on 28.6.02. In the hospital discharge slip dated 27.6.02 the Medical Officer had asked M.H. Kirkee for holding Medical Board. As the petitioner was on rest, he was called by the C.O and sent for training again. Vide letter dated 16.8.02 Adjutant General's Branch, Army Head Quarters, L-Block, New Delhi wrote to Head Quarters, Bombay Engineering Group and Centre, Kirkee, Pune stating that the petitioner be invalided out of training and service. In furtherance to this, vide Railway Warrant No. 93PA 465714 which was valid till 31.10.2002, the petitioner was asked to go back home without giving any reason in writing or otherwise, as to why he was being released from training or service. It is averred by the petitioner that respondent no.4 mischievously issued the petitioner a clearance certificate which was undated.

2. On the above facts, the petitioner has challenged the correctness of the order dated 16.8.02 with a prayer that the said letter be set aside and discharge of the petitioner from the service be declared as illegal, ineffective and respondents be directed to permit the petitioner to join his duties and he be paid all previous dues.

3. On 23.7.03, the respondents have filed the counter affidavit challenging the claim of the petitioner in law and on facts. It is not disputed that the petitioner was recruited and on the preliminary medical examination nothing wrong was detected. However, thereafter a second medical examination of the petitioner was carried out at Military Hospital, Kirkee in terms of Army HQ letter No. 76063/DGMS-5A dated 31.7.01. During investigation of the ENT Specialist at Military Hospital, Kirkee, the petitioner was found unfit and thereafter his case was referred to Command Hospital, Pune on 26.6.02 for further investigation. The petitioner was admitted in Command Hospital, Pune on 26.6.02 and after investigation he was declared unfit by the Medical Board. The copy of the opinion of the Medical Board is annexed to the counter affidavit as R-2. After the case had been recommended by the Additional Advisor, ENT of the Command Hospital, the case was taken up by the Director General of Medical Services, Army Headquarters, Delhi vide letter dated 26.7.02 for necessary directions. Vide letter dated 16.8.02 in furtherance to which the petitioner was referred to Military Hospital, Kirkee the petitioner was declared unfit for Army, subject to endorsement if the disability is considered pre-existing to enrolment. The Medical Board assembled at Military Hospital, Kirkee and finalized its report on 30.9.02 which was forwarded to the Headquarters on 30.9.02. As per the opinion of the Medical Board, it was said that disability is considered pre-existing to enrolment and it was so recorded in AFMSF-16 where after the petitioner was invalided out on getting approval of DDMS HQ M and G Area on 18.10.03. In these circumstances, the respondents pray that the writ petition of the petitioner be dismissed, as the petitioner is not entitled to any relief. The only issue that arises for determination in the present case before the Court is whether the discharge/invaliding out the petitioner from training was proper or was arbitrary. It is not disputed before us that the petitioner was recruited in Army and sent to training on 17.4.02 where after he claims to have suffered some injury on his face and ear and was practically out of training right from 26.6.02 when he was sent to M.H. Kirkee, Pune and subsequently to Command Hospital. He has been subjected to medical examination by the Specialists as well as the Medical Board. The opinion of the Medical Board has been placed on the Court file. After the petitioner was examined by the Specialists, the Medical Board in its opinion recorded in AFMSF-16 its findings as under:

Did the disability/ies exist before entering service?

Yes, the disability is considered pre-existing to enrolment and remained undetected by recruiting.

No, because often disease takes generally more than one year to develop.

In the case of a disability. Disability is considered pre-existing to enrolment.

4. The above medical opinion is reasoned and has been expressed by the competent authorities after the petitioner was subjected to clinical examination by the Medical Board as well as the Specialists. There is nothing on record of this file which can show that the disability of the petitioner was not pre- existing to his joining the Army. In terms of the judgment of the Supreme Court in the case of Controller of defense Accoutns and Ors. v. S. Balachandran Nair AIR 2005 4391 the opinion of the Medical Board would have primacy and the Courts would normally not interfere in the opinion expressed by the Medical Board. Once the medical opinion is taken to be correct, there is no reason for this Court to grant benefit to the petitioner. The petitioner is stated to be suffering from CSOM (LT) AHCO Artral Tyoe H-652 and the said disability is stated to be pre- existing to the enrolment. Within a short time of his joining, the petitioner was found unfit to continue training and it was so recorded by the ENT Specialist on 27.6.02 (the documents which have been annexed Along with the counter affidavit). The Additional Advisor ENT of the Command Hospital on the same date had recorded that the petitioner was unlikely to become an efficient soldier and is unfit to continue in training. Besides all this, the Medical Board had also stated that such a disease takes generally more than a year to develop. The cumulative effect of these findings recorded by the authorities would be that the disease of the petitioner was existing prior to his joining the training. The mere finding that in the preliminary medical test the same was not detected, would not be of any advantage to the petitioner.

5. The learned Counsel appearing for the petitioner contended that the opinion has been expressed by an Additional Advisor while under the instructions issued by the authorities, it is only the advisor who is competent to form such an opinion. This argument is again without any merit because it is not even the case of the petitioner in the petition that he is not suffering from the disease. An Additional Advisor can always perform the duties and functions of the Advisor unless it was impermissible under the rules. In the facts of the present case, this contention in any case is of no consequence inasmuch as the petitioner was admittedly subjected to a Medical Board before he was invalided out and/or discharged being unfit to continue with the training.

6. For the reasons afore-stated, we find no merit in this writ petition and the same is disposed of, while leaving the parties to bear their own costs.