Hari Kumar vs Union Of India & Ors.
2012 Latest Caselaw 2839 Del

       *      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Date of Decision: 30.04.2012

+                    W.P.(C) No.1703/2012

Hari Kumar                                          ...    Petitioner
                                   versus

Union of India & Ors.                               ...    Respondents


Advocates who appeared in this case:

For the Petitioner         : Mr.Suvidutt Sundaram, Advocate
For Respondents            : Mr.Ankur Chhibber, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

* CM No.3739/2012

This is an application by the petitioner seeking the condonation of

26 days delay in re-filing the writ petition.

For the reasons stated in the application, it is allowed and delay

of 26 days in re-filing the writ petition is condoned.

W.P.(C) No.1703/2012

1. The petitioner has sought the quashing of order dated 28th

January, 2011 passed by the Principal Bench, Armed Forces Tribunal

in O.A No.43/2011 titled as „Hari Kumar v. Union of India & Ors‟ and

has also sought direction to the respondents to select the petitioner into

the SCO‟s current running course or in the next batch.

2. Relevant pleas and contentions raised by the petitioner in support

of his petition are that petitioner joined the Indian Army as a Gunner

(General Duty) in the corps of Artillery on 25th April, 1996. The

petitioner contended that when he was enlisted in the Army, he was

medically fit and was placed in the category of Shape I.

3. The petitioner was, thereafter, promoted to the post of Lance

Nayak on 30th July, 2001. He averred that he was also examined

medically during the annual medical check up on 9th July, 2003 and he

was found to be medically fit and was consequently certified to be in the

category of Shape I.

4. The petitioner was further promoted to the post of Naik on 5th

December, 2003 and thereafter to the rank of Lance Hawaldar on 1st

December, 2009. The petitioner has contended that after his promotion

to the rank of Hawaldar on 12th May, 2011, he is still serving on the

same rank and post. According to the petitioner, during his entire

service of 16 years in the Army he has remained in the medical category

of Shape I. The petitioner further disclosed that though he had been

placed in Shape I, however, since he was exposed to violent noises and

heavy sounds of artillery guns, it may have caused hearing loss or

impairment in the hearing of the petitioner. The petitioner asserted that

despite the rigorous demands of service, he studied during night and

obtained a degree of B.A (History) from the University of Calicut.

5. The petitioner had, thereafter, applied for selection to the post of

Special Commissioned Officer, for which he was called by the Service

Selection Board. According to the petitioner, under the Army policy, the

Special Commissioned Officer is a special cadre created in which entry

is given to all ranks (JCO/NCO/Lance Naik/Sepoy) of all the Corps

except Army Medical Corps/Army Dental Corps/Army Postal Service,

Territorial Army and Religious Teachers.

6. As per the eligibility conditions for enlistment as a Special

Commissioned Officer, the candidates are required to have the medical

category of Shape-I and they should have completed five years service

on the last date of submission of their application to their unit, besides

having passed Class XII or any other recognized technical

examination/certificate/diploma of one year or more than one year

duration. The eligibility for the said cadre also contemplated that the

candidates should have been graded above average in the last ACR and

the candidates should have been recommended for the said commission

by a superior authority.

7. The petitioner disclosed that on account of fulfilling all the

eligibility conditions and criteria prescribed for the post of SCO, and on

being duly recommended by the Commanding Officer of the rank of

Colonel, Commander of the rank of Brigadier and the General Officer

Commanding in the rank of Major General, the petitioner applied for the

Service Selection Board interview. Meanwhile, as far as the medical

fitness of the petitioner was concerned, during the annual medical

examination which consider the weight, chest measurement, waist,

blood pressure and disability, the petitioner had been placed in the

medical category of Shape-I on 13th May, 2010.

8. In pursuance of the application made by the petitioner, the SSB

issued a call letter dated 13th June, 2010 directing the petitioner to

attend the interview for the selection for the SCO‟s 27th Course held

from 24th July, 2010 to 28th July, 2010 at Bangalore. According to the

petitioner, in compliance with the criterion laid down and the various

stages of selection, he was successful in clearing the same and he also

was declared as passed by the SSB, Bangalore on 28th July, 2010.

9. After the petitioner was declared successful, the petitioner was

subjected to a thorough medical checkup by the Special Medical Board

(SMB) at the Air Force Command Hospital, Bangalore. After the

thorough medical checkup which was carried out from 29th July to 3rd

August, 2010, the petitioner was, however, found to be unfit on account

of "sub-standard hearing".

10. After being declared as `unfit‟ for the selection on account of "sub-

standard hearing", the petitioner contended that he went for an

unofficial medical checkup in the Army Hospital (R&R) Delhi Cantt on

11th August, 2010. According to the petitioner, the medical examination

revealed that the hearing of the petitioner was normal in his right ear,

however, there is loss of hearing in the left ear.

11. After obtaining the report from the Army Hospital (R&R), the

petitioner challenged the decision of the Special Medical Board (SMB)

and sought for an Appeal Medical Board (AMB). The Appeal Medical

Board examined the petitioner on 20th August, 2010 at the base

hospital, Delhi Cantonment. The Appeal Medical Board also confirmed

that the petitioner has "Sensory Neural Hearing Loss (Left Ear)". The

petitioner was communicated the findings of the Appeal Medical Board

and was also given the opportunity to challenge the same before the

Review Medical Board.

12. Consequently, the petitioner challenged the findings of the Appeal

Medical Board before the Review Medical Board. The Review Medical

Board of the petitioner was conducted at the Army Research and the

Referral Hospital (R&R Hospital), which also confirmed on 24th

September, 2010 the result of the Appeal Medical Board that the

petitioner is suffering from "Sensory Neural Hearing Loss (Left Ear)".

13. The petitioner asserted that he has been discriminated, as all the

candidates of the SCO 27th course were declared successful except the

petitioner and in the circumstances the petitioner has been

discriminated and victimized. Aggrieved by the decision of the

respondents in not selecting the petitioner to the post of Special

Commissioned Officer, the petitioner filed an original application dated

25th January, 2011 before the Armed Forces Tribunal, Principal Bench.

The Principal Bench of the Armed Forces Tribunal, however, dismissed

the original application of the petitioner in O.A No.43/2011 on the

ground that the petitioner is medically unfit.

14. The petitioner has challenged this decision of the Principal Bench,

Armed Forces Tribunal, on the ground that the eligibility conditions do

not contemplate a medical checkup for those candidates who are

declared successful. According to the petitioner, since in the annual

regular medical checkup for the Army, he has been placed in Shape I,

the findings of the Special Medical Board, the Appeal Medical Board and

the Review Medical Board for the SCO cannot be relied on and it cannot

be held that the petitioner is not in category Shape I and that he is not

medically fit and eligible for the post of Special Commissioned Officer.

15. The petitioner has also relied on Capt. Virendra Kumar vs. Union

of India (UOI), (1981) 1 SCC 485 in order to emphasize the relevance of

the medical category Shape I in the Indian Army. In the circumstances,

it is contended that as the petitioner has always been in Shape I since

the time he joined the Army way back in 1996 till date, therefore, the

petitioner could not be denied the selection to the post of the Special

Commissioned Officer on account of having "Sensory Neural Hearing

Loss (Left Ear)" which was developed during the course of his duty.

16. The petitioner also contended that the function of a Special

Commissioned Officer is more mental in nature, unlike a jawan whose

duty is more or less a physical one, and in the circumstances, since the

petitioner was placed in Shape I in the regular Army medical checkup

for the last 16 years of his service, solely on account of the fact that the

medical checkup carried out by the selection board for the selection to

the post of Special Commissioned Officer had declared the petitioner to

be unfit on account of a negligible impairment of "Sensory Neural

Hearing Loss (Left Ear)",cannot deny him the selection to the post of

SCO.

17. The petitioner also relied on certain Army personnel who received

disabilities in previous wars, including some foreigners who were

retained in the Armed Forces despite their physical infirmities and in

the circumstances it is contended that "Sensory Neural Hearing Loss

(Left Ear)" does not make the petitioner unfit and ineligible for the said

post.

18. Mr.Ankur Chhibber, Advocate who has appeared on advance

notice, has contended that there is no rule that stipulates that the

medical categories prescribed pursuant to the annual medical

examination record of a candidate has to be accepted for enlistment to

the post of Special Commissioned Officer and that the respondents are

debarred from carrying out any medical checkup after the

recommendations of the Service Selection Board (SSB). He also

contended that there was no ground for singling out the petitioner. No

malafide or bias has even been attributed by the petitioner against any

of the officials of the Service Selection Board or the other officials of the

different Medical Boards. The learned counsel further contended that

the petitioner himself has admitted that on account of the Corps to

which he belongs, there may have been hearing loss or impairment of

hearing in his left ear. It is submitted that once the petitioner admits

that there is an impairment in his left ear, which has also been

confirmed by the Medical Board, Appeal Medical Board and Review

Medical Board, the petitioner cannot claim that he is medically fit for

appointment to the post of Special Commissioned Officer.

19. This Court has heard the learned counsel for the parties and has

also perused the writ petition and the documents produced along with

the writ petition and the record produced by the learned counsel for the

respondents. This is not disputed that the Armed Forces Tribunal,

Principal Bench found the petitioner medically unfit and declined to

interfere in his petition seeking appointment as a Special Commissioned

Officer. The petitioner‟s counsel has also not denied that the petitioner

has "Sensory Neural Hearing Loss (Left Ear)". In any case, the findings

of the Medical Board, Appeal Medical Board and the Review Medical

Board are consistent in holding that the petitioner suffers from

"Sensory Neural Hearing Loss (Left Ear)". If that be so and in case of no

mala fides being attributed against the respondents, if it has been held

by the respondents that the petitioner is not fit to be appointed to the

post of Special Commissioned Officer, the petitioner cannot allege that

he has been discriminated on the ground that all other persons who

were in the selection process for 27th SCO have been selected except for

the petitioner. From the averments made by the petitioner, it is

apparent that no allegation has been made by the petitioner that any of

the candidates who have been selected for the post of SCO, their

medical category in the Army and not the Special Medical Board

assessment had been taken into consideration. There are no allegations

by the petitioner that those who have been selected had any other

defect or shortcoming which would have disentitled those candidates for

selection to the post of Special Commissioned Officer.

20. In the circumstances, if the petitioner has "Sensory Neural

Hearing Loss (Left Ear)" he cannot compare himself to others and allege

that he has been discriminated against.

21. The learned counsel for the petitioner has also not been able to

point out any rule, procedure or practice under which the annual

medical category given by the Army to the Non Commissioned Officer

has to be accepted by the respondents for the purpose of considering

the eligibility and fitness of a candidate for appointment to the post of

Special Commissioned Officer. If that be so, the petitioner cannot insist

that since as a Non Commissioned Officer on annual medical checkups

he has been placed in category Shape I, therefore, that categorization of

the medical category of the petitioner as Shape I has to be necessarily

accepted by the Special Selection Board for selection to the post of

Special Commissioned Officer. Another factor which emerges from the

perusal of the annual medical examination record of the Non

Commissioned Officer is that it is based only on the consideration of the

weight, chest, waist, blood pressure and disability for placing a Non

Commissioned Officer in the medical category. While admittedly, for

ascertaining the medical category for the post of Special Commissioned

Officer, the parameters are different and more elaborate and even the

disability of "Sensory Neural Hearing Loss (Left Ear)", which might not

be construed to be a major disability for a non commissioned officer,

might be an important requirement for the post of SCO. Regardless, in

the absence of any malafides being imputed on the part of respondents,

the petitioner cannot contend that he has not been selected on account

of arbitrary or illegal reasons.

22. In the totality of the facts and circumstances there are no

grounds to interfere with the decisions of the respondents and the order

of the Tribunal holding that the petitioner is medically unfit on account

of "Sensory Neural Hearing Loss (Left Ear)" for appointment to the post

of Special Commissioned Officer so as to require any interference by

this Court in exercise of its jurisdiction under Article 226 of the

Constitution of India. The writ petition is, therefore, dismissed. It is,

however, clarified that on account of the petitioner suffering from

"Sensory Neural Hearing Loss (Left Ear)", the respondents shall be

entitled to review his medical category as a Non Commissioned Officer.

With these observations the writ petition is dismissed.

ANIL KUMAR, J.

April 30, 2012                         SUDERSHAN KUMAR MISRA, J.
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