Satendra Singh vs Uoi & Ors.
2009 Latest Caselaw 4174 Del

i.2
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Date of Decision: 15th October, 2009

+                           W.P.(C) 9996/2009

      SATENDRA SINGH                     ..... Petitioner
                     Through    : Mr. Arvind Nayar, Advocate
                versus
      UOI & ORS.                       ..... Respondents
                     Through    :Mr. Gaurav Liberhan, Advocate
      CORAM:
       HON'BLE MR. JUSTICE      PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE      SURESH KAIT

  1. Whether the Reporters of local papers may be allowed to
     see the judgment?                                 No
  2. To be referred to Reporter or not?                No
  3. Whether the judgment should be reported in the Digest?No
                       ORDER

% 15.10.2009

PRADEEP NANDRAJOG, J. (Oral)

1. Heard learned counsel for the parties.

2. A short issue arises for consideration and hence the writ

petition is being disposed of at this stage itself as consented to

by learned counsel for the parties.

3. The petitioner had applied for the post of 'Ground Duty

Officer' under the Indian Air Force in the year 2008 and

successfully cleared the written examination and as per the

rules applicable was subjected to a fitness test and was

certified fit by the Medical Board of the Indian Air Force

resulting in the petitioner being empanelled in the list of

successful candidates.

4. Unfortunately for him, the merit position of the petitioner

being low and the vacancies notified for being filled up being

exhausted, the petitioner got no benefit of his success in the

year 2008.

5. In the year 2009, the petitioner undertook the process of

selection in response to the public notice issued by the Indian

Air Force inviting applications from eligible candidates to fill up

the notified vacancies to the post of Ground Duty Officer in the

year 2009.

6. Having successfully cleared the written test, the

appellant was required to undertake medical fitness and

unfortunately for him was declared medically unfit. The

finding returned was that the petitioner suffers from a

congenital defect; being, ATRIAL SEPTAL DEFECT (AST).

7. To put it in a layman's language, a hole in the Septum

that separates the two upper chambers (ATRIA) of the heart

was detected.

8. Being foxed by the fact that in the year 2008 no such

defect was detected and in the year 2009 such a defect was

detected, which according to the petitioner, could not have

happened had it been a congenital birth defect.

9. To satisfy himself, the petitioner got himself examined at

a Government Hospital i.e. DDU Hospital, New Delhi and

obtained a certification from the Medical Officer of the said

hospital certifying the petitioner had no congenital defect.

10. Annexing the said opinion and the relevant material on

which the opinion was given by the doctors at DDU Hospital as

Annexure P-6, instant petition was filed praying that directions

be issued to the respondents to declare the petitioner fit for

appointment and the petitioner be permitted to participate in

the 126 GDOC training course for the post of Ground Duty

Officer (GD Officer).

11. It is urged at the hearing of the writ petition by Sh.

Arvind Nayar, learned counsel for the petitioner, that it cannot

happen that within one year the petitioner would develop the

cardiac defect which is alleged by the respondents.

12. Counsel urges that the medical infirmity alleged against

the petitioner, if at all, has to be congenital and there is just no

way the same could not be detected for 25 years i.e. the age

of the petitioner.

13. We find from the record of the respondents and as per

counter affidavit filed, that the Atrial Septal Defect was

detected at the medical examination of the petitioner

conducted on 13.05.2009.

14. The petitioner, as per rules applicable, sought Review

Medical Board to be constituted which was convened and the

Review Medical Board, vide its report dated 20.07.2009,

reiterated the fact of the petitioner suffering from the ASD.

15. As per the respondents, three cardiologists of the Armed

Forces Medical Services conducted three repeated tests upon

the petitioner.

16. We have been shown medical literature on the issue;

being Harisson's: Principles of Internal Medicine; 17th Edition.

At page 1459 whereof it has been noted as under:

"Patients with atrial septal defect are usually asymptomatic in early life, although there may be some physical under development and an increased tendency for respiratory infections ; cardiorespiratory symptoms occur in many older patients. Beyond the fourth decade, a significant number of patients develop artial arrhythmias, pulmonary arterial hypertension, bidirectional and then right-to -left shunting of blood, and cardiac failure. Patients exposed to the chronic environmental hypoxia of high altitude tend to develop pulmonary hypertension at younger ages. In some older patients, left-to-right shunting across the defect increases as progressive systematic hypertension and / or coronary artery disease result in reduced compliance of the left ventricle."

17. At page 1460 it has been further opined as under:-

"ECHOCARDIOGRAM Echocardiography reveals pulmonary arterial and RV and RA dilatation with abnormal (paradoxical) ventricular septal motion in the presence of a significant right heart volume overload. The atrial septal disease may be visualized directly by two -dimensional imaging, colour flow imaging, or echocontrast. In most institutions, two-dimensional

echocardiography plus colour Doppler flow examination has supplanted cardiac catheterization.Transesophageal echocardiography is indicated if the transthoracic echocardiogram is ambiguous, which is often the case with sinus venosus defects, or during catheter device closure. Cardiac catheterization is performed if inconsistencies exist in the clinical data, if significant pulmonary hypertension or associated malformations are suspected, or if coronary artery disease is possibility".

18. It is apparent that with the advent of science and

technology the procedure of detecting heart ailments has been

refined as a result, defects which hitherto fore could not be

detected, have become capable of being detected.

19. The multifaceted procedure of Echocardiogram

envisaged as per the medical literature noted hereinabove in

para-17 above shows that when two-dimensional imaging,

colour flow imaging or echocontrast is done with colour

doppler flow examination, best results are obtained.

20. The record of the respondents shows that the petitioner

was subjected to the said procedure.

21. The medical record produced by the petitioner pertaining

to the DDU Hospital shows that the cardiologists in the said

hospital subjected the petitioner to a simple ECHO test.

22. On the issue as to how come the said defect was not

detected in the year 2008, suffice would it be to state that in

view of the medical literature noted in para-16 above, as the

patient ages the defect become more prominent.

23. Exercising jurisdiction under Article 226 of the

Constitution of India, this court is not to sit as a superior

medical expert expressing opinions over the opinions rendered

by the experts in the field.

24. Whenever an opinion of an expert pertaining to a subject

of specialized knowledge is brought before the court, the

domain and the jurisdiction of the court is limited to firstly

consider whether the opinion relates to a specialized subject.

Secondly, whether the person giving the opinion is an expert in

the field and lastly, whether there is accepted literature on the

material which is accepted by the experts in the field and that

the expert opinion is based thereon.

25. A learned single Judge of this court, in the decision

reported as 2000 IV AD (Delhi) 446 Sh. Umesh Chakravarti vs.

UOI & Ors. held that exercising jurisdiction under Section 226

of the Constitution of India, a court would not comparatively

evaluate opinion given by a Medical Board constituted by a

appointing authority with reference to opinions of doctors

obtained from hospitals elsewhere.

26. Under the circumstances, within the confines of our

jurisdiction under Article 226 of the Constitution of India,

noting the aforesaid facts and the medical literature, we

express our inability to grant relief to the petitioner as prayed

for.

28. The writ petition is dismissed with no order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE OCTOBER 15, 2009 'nks'