Recruit/G.D. Mohan Singh Kuntal vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 790 Del

JUDGMENT

S.N. Aggarwal, J.

1. The petitioner is in second round of litigation. He was enrolled in Army Medical Corps on 6.2.2001. He was sent to Branch Recruiting Officer, Alwar (Rajasthan) where his primary medical examination was done by the Recruiting Medical Officer, who after medical examination found him fit. Thereafter, the petitioner was dispatched for training to the Training Centre of Army Medical Corps, Lucknow, where during the course of his basic military training, he was again medically examined by the Regimental Medical Officer, who found that the petitioner was suffering from ear infection and, therefore, declared him unfit for further retention in service. Subsequently, the petitioner was finally invalidated out of service w.e.f. 1.6.2001 (forenoon) under Rule 13(3)(iv) of Army Rules, 1954 on the ground that he was unlikely to become efficient soldier.

2. Aggrieved by his discharge, the petitioner filed a statutory appeal and when he did not receive any response to the same, he preferred a civil writ petition bearing No. 1740/2003 which was disposed of by a Division Bench of this Court vide order dated 7.3.2003 directing the respondents to dispose of the statutory appeal of the petitioner within eight weeks. Pursuant to the said order of this Court, the respondents considered the statutory appeal of the petitioner, but did not find any substance therein and rejected the same vide order dated 9.10.2003.

3. After more than 19 months of the rejection of his statutory appeal, the petitioner has again filed this writ petition challenging his invalidating out of service vide impugned order dated 9.10.2003 (Annexure P-1).

4. He has prayed for a writ of certiorari quashing the impugned order of discharge dated 9.10.2003 and for directions to the respondents to reinstate him in service with all consequential benefits.

5. In response to the notice of this writ petition, the respondents have filed their counter affidavit and denied the averments contained in the writ petition. It is denied that the petitioner was medically examined thrice as alleged in the petition. It is stated that initially only primary medical examination is done of the recruits at the Recruiting Branch in all the cases of recruitment. It is further stated that due to paucity of time and heavy rush of enrollment of the candidates and lack of medical facilities at the Recruiting Branch, there was always chances of over-looking of existing disease of candidates and that is why the second medical examination is carried out at concerned Training Centre. The plea of the respondents is that in case of the petitioner only one medical examination was held at Recruiting Branch, Pokharan and thereafter he was required to undergo mandatory second medical examination as per policy laid down vide Army Headquarter Letter No. 76063/DGMS-5A dated 29.5.1998 and 76063/DGMS-5A dated 6.7.1999. During second medical examination done on 22.2.2001, the petitioner was found suffering from CSOM (Right) Ear. He was referred to Command Hospital (Central Command), Lucknow for opinion of Senior Adviser (ENT) and thereafter he was transferred to Army Hospital (Referral and Research), Delhi on 23.2.2001 for opinion of the consultant (ENT).

6. The Consultant (ENT) on 28.2.2001 examined the petitioner and found that he is case of CSOM (Right) Ear and declared him unfit in ENT. Thereafter the show cause notice for invalidating medical board was issued to the petitioner by BH Lucknow vide their letter No. BH/291/Stats dated 16.4.2001. The proforma for initial reply to show cause notice was signed by the petitioner himself.

7. Sanction to invalidate out the petitioner was received vide Army Headquarter letter No. 76663/DGMS-5A dated 23.4.2001. Accordingly, he was invalidated out of service by a duly constituted Invalidating Medical Board held on 4.5.2001 at Base Hospital, Lucknow. The proceedings of the Invalidating Board were approved by HQ UB Area (Medical), Bareilly being the competent medical authority on 30.5.2001. Pursuant thereto the petitioner was invalidated out of service on 9.6.2001 (AN) under Rule 13(3) iv of Army Rules, 1954 and was struck of from the strength of Army Medical Corps w.e.f.10.6.2001 (FN). The case of the respondents is that the petitioner was invalidated out of service after following due legal process and, therefore, the respondents have prayed for dismissal of the present writ petition.

8. We have heard the learned Counsel for the parties and have also perused the entire record of the case placed before us.

9. Learned Counsel for the petitioner had relied upon Regulation 135(d) of the defense Services Regulations and relying upon the same, he had argued that the second medical examination was impermissible, more so, when the petitioner was found fit at the time of his first medical examination at Recruiting Branch. Learned Counsel also relied upon a judgment of Jabalpur Bench of Madhya Pradesh High Court in Jakhar Chaturbhuj Singh v. Union of India Writ Petition No. 5196/2000, reference of which is made in the book Law Relating to the Armed Forces" Fourth Edition written by Major General Nilendra Kumar, Judge Advocate General (Army). The full text of this judgment was not placed before us and, therefore, we did not have had the advantage of knowing the complete facts of that case, that led to Their Lordships of Madhya Pradesh High Court to hold that the statutory regulations can only be supplemented by executive instructions as and when there is a gap but not supplanted. As far as principle that the executive instructions cannot supplant the statutory regulations is concerned, there can hardly be any dispute about this proposition of law. What we are confronted in the present case is not the conflict between the statutory regulations and the executive instructions. It appears that the second medical examination of the petitioner at the Training Centre, Lucknow was held within the parameters laid down in Regulation 135(d) of defense Services Regulations, which is reproduced hereinbelow:

135(d) - The medical re-examination immediately on arrival at his unit of a recruit enrolled by a RO and passed fit by a Recruiting Medical Officer is not permissible. Only in exceptional cases, where the medical office in charge of the case considers it unlikely that a recruit will make an efficient soldier, will he be medically boarded before undergoing training.

10. At this stage, it shall also be relevant to refer to Regulation 135(e) and the same is reproduced hereinbelow:

135(e) - When a recruit breaks down while undergoing training or is found to be suffering from a disability likely to prevent him becoming an efficient soldier he will be medically boarded, and, if found unfit discharged under Army Rule 13(3) item IV.

11. A plain reading of the above Regulations would make it explicitly clear that the respondents were well within their rights to subject the petitioner to second medical examination, more so, when the detailed medical examination was not done at Branch Recruiting Office, Pokharan. Learned Counsel for the respondents had contended that at the time of recruitment at Branch Recruiting Office, Pokharan there was very heavy rush of candidates for enrollment and the Branch Recruiting Office did not even have the necessary paraphernalia for subjecting the candidates selected for enrollment to detailed medical examination because the only facility available there was of an M.B.B.S. doctor, who conducted only preliminary medical examination on such recruits.

12. Learned Counsel for the respondents had also referred to the guidelines laid down by the Director General Medical Services (Army), Adjutant General Branch, Army Headquarter, New Delhi vide Office Order bearing No. 76063/DGMS-5A DATED 6.7.1999 (Annexure R-1) in relation to policy of the respondents for subjecting the new recruits to second medical examination. The petitioner has not denied that his recruitment at Branch Recruiting Office, Pokharan, was under Unit Headquarter Quota and if it was so, the second medical examination done on the petitioner at the Training Centre, Lucknow was not only within the permissible limits of the above referred policy of the respondents but also the same was in consonance with the Army Regulations referred to above. The petitioner has not denied that at the time of his second medical examination held at Training Centre, Lucknow, he was suffering from Chronic Suppurative OtIT is Media (CSOM) (Right) Ear. The records reveal that the respondents before invalidating out the petitioner from service had obtained the medical opinion regarding illness of the petitioner from two Senior ENT Consultants and then had also obtained the opinion of the medical board held at Base Hospital, Lucknow on 30.5.2001 and it was only thereafter it was finally decided to invalidate him out from the service invoking powers under Rule 13(3)(iv) of Army Rules, 1954.

13. We would like to mention that earlier the petitioner had filed a writ petition being CWP No. 1740/2003, which was disposed of by a Division Bench of this Court vide its order dated 7.3.2003 directing the respondents to dispose of the statutory appeal of the petitioner within eight weeks. Pursuant to the said order of this Court, the respondents had considered the statutory appeal of the petitioner and rejected the same by a reasoned order dated 9.10.2003. The reasons for invalidating out the petitioner from service are contained in the said rejection order and the contents of the same are reproduced hereinbelow:

1. Pursuant to Hon'ble High Court of Delhi order dated 07 Mar 2003, the Legal Notice dated 12 Dec 2002 served by Advocate Shri DS Kauntae on behalf of you i.e. No. 15412464K Ex Rect Mohan Singh was examined by this Directorate General of medical Services (Army), Army Headquarters and it has been observed that you were recruited by Branch Recruiting Office (BRO), Alwar. After that you had reported to AMC Centre and School, Lucknow on 06 Feb 2001, where you have been examined by the RMO, AMC Centre and School as per prevailing rules on the subject matter and were found to be suffering from right ear infection (Chronic Suppurative OtIT is Media) for which you were declared unfit for further training and retention in service. Hence, you were issued a show cause notice on 16 Apr. 2001, subsequently your Invalidment Medical Board was held at Base Hospital, Lucknow on 04 May 2001 which was approved by the competent authority on 30 May 2001 and finally you were struck off strength from service on 09 Jun 2001 under Rule 13(3)IV of Army Rules 1954.

2. It is also brought out that you were also examined for the ailment of the ear by a consultant in ENT (Ear, Nose and Throat) subject in Armed Forces Medical Services at Army Hospital (Research 7 Referral) Delhi Cantt. New Delhi a premier medical centre of the country and declared unfit for retention in service.

3. In view of aforesaid your Legal Notice lacks substance and merit, hence rejected.

14. A reading of the above rejection order passed by the respondents would show that the authorities had also got the petitioner examined for his ailment of the Ear by an ENT Consultant (Ear, Nose and Throat) in Army Hospital (Referral and Research), Delhi Cantt., Delhi, a premier medical centre of the country, which declared him unfit for retention in service. Regulation 135(e), referred to above, would show that the competent authority can invalidate out any recruit under training if he is found to be suffering from a disability likely to prevent him from becoming an efficient soldier. Here in this case the petitioner was declared unfit for retention in service on account of his ailment discovered during second medical examination and, therefore, we are of the view that he was rightly invalidated out of service in exercise of powers under Rule 13(3)(iv) of Army Rules, 1954.

15. In view of the above, we do not find any merit in this writ petition which fails and is hereby dismissed leaving the parties to bear their own costs.