Inder Setia vs Union Of India & Ors.
2012 Latest Caselaw 821 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.9080/2011

%                       Date of Decision: 07.02.2012

Inder Setia                                                 .... Petitioner

                     Through    Mr.Manish Gandhi, Advocate

                                 Versus

Union of India & Ors.                                   .... Respondents

                     Through Ms.Shilpa Singh, Advocate.


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


ANIL KUMAR, J.

*

1. The petitioner has sought the quashing of the order declaring the

petitioner unfit for recruitment/selection to the "Flying Branch" of the

Indian Air Force and a direction to the respondents to select the

petitioner in the "Flying Branch".

2. Brief facts to comprehend the disputes are that the petitioner had

applied for selection in the "Flying Branch" of the Indian Air Force,

pursuant to a publication dated 10th September, 2011, through a Fast

Track Selection at the Guru Nanak Dev University, Amritsar.

3. The petitioner has the qualification of B.Tech and he thus had

fulfilled the eligibility educational qualification for selection into the

"Flying Branch" of the Indian Air Force. The eligibility educational

qualification for selection as prescribed in the said advertisement dated

10th September, 2011 is "Graduate (three years degree course) in any

discipline from a recognized University who have attained a minimum

60% in aggregate in all the papers put together and have passed Maths

& Physics at 10+2 level or BE/B.Tech (four years course) from a

recognized University with minimum 60% marks in aggregate in all

papers put together". The physical standards provided for vision were

(a) Minimum Visual Acuity 6/6 in one eye and 6/9 in other, correctable

to 6/6 only for hypermetropia (b) Manifest Myopia-nil. The physical

standards further stipulated that candidates who have undergone Lasik

surgery for correction of vision are admissible in the Transport and

Helicopter streams of the Short Service Commission in the "Flying

Branch".

4. The petitioner disclosed that he was enrolled for selection vide

Batch No.V-AFCAT/SEC/20. The petitioner had qualified for the written

examination and for the further selection he was directed to report on

2nd October, 2011 at the 4th Air Force Selection Board, Varanasi. The

Selection Board at Varanasi by letter dated 6th October, 2011

recommended the name of the petitioner for medical examination. The

petitioner appeared before the Air Force Central Medical Examination

(AFCME) on 17th October, 2011. The petitioner had also applied for

selection to the post of Assistant Commandant in the Indian Coast

Guard and since the dates of examination for the said post were

clashing with the date of medical examination of the petitioner, he

sought for a change of the date of his medical examination. The date of

medical examination of the petitioner was, therefore, changed to 24th

October, 2011 in place of 17th October, 2011. Pursuant to the medical

examination by the AFCME, Subroto Park, New Delhi, he was declared

medically unfit on account of firstly having Sub Standard Vision and

Myopia beyond permissible limits and secondly due to VPCS.

5. The petitioner, therefore, preferred an appeal before the Appellate

Medical Board. For the medical examination by the Appellate Medical

Board, the petitioner was directed to appear on 18th November, 2011 at

R.K.Puram, Air Force Head Quarters, Delhi. The Appellate Medical

Board conducted the medical examination of the petitioner at the Base

Hospital, Delhi Cantt. The result of the Appellate Medical Board was

communicated to the petitioner by letter dated 25th November, 2011,

whereby the petitioner was declared unfit for 09 SSC (M) F(P) "Flying

Branch", however, the petitioner was declared fit for 80 AEC/131 GDOC

"Technical Branch". Ultimately, the petitioner was declared unfit for the

"Flying Branch" on account of having Myopia beyond permissible limits.

While communicating the result of the Appellate Medical Board, the

petitioner was also given the option to have a Review Medical Board. It

was, however, clarified that the grant of the Review Medical Board is at

the discretion of the Director General, Armed Force Medical Services

after considering the merit of the case. The petitioner, therefore, applied

for the Review Medical Board which was allowed and he was re-

examined on 12th December, 2011. While requesting for a Review

Medical Board, the petitioner had also furnished an OPD Card of the All

India Institute of Medical Science in support of his claim that he does

not have manifest Myopia. The Review Medical Board was permitted

since there was a variance between the findings of the Appellate Medical

Board‟s Eye Specialist and the Civilian Eye Specialist.

6. The Review Medical Board was conducted by a Senior Eye

Specialist Consultant (Ophth) on 14th December, 2011, however, the

Review Medical Board too declared the petitioner unfit for 09 SSC (M)

F(P) on account of manifest Myopia but held the petitioner to be fit for

80 AEC/131 GDOC.

7. The petitioner had also got himself medically examined for his eye

sight from the B.K.General Hospital at Faridabad. According to the

petitioner, the Govt. Hospital declared the frequency measurement of

the eye sight of the petitioner in consonance with the criteria mentioned

under the advertisement for the "Flying Branch".

8. The petitioner was also medically examined for the Selection

Board of the Coast Guard on 16th November, 2011. The medical

examination was conducted at the Base Hospital, Delhi Cantt. The

Medical Board of the Coast Guard, however, did not find any disability

in the eye sight of the petitioner and they found the vision of the

petitioner to be 6/6 in the right eye and 6/6 in the left eye.

9. As the petitioner had been declared medically unfit by the Medical

Board, the Appellate Medical Board and the Review Medical Board for

"Flying Branch", the petitioner has preferred the present writ petition,

inter-alia, on the grounds that the respondents have conducted the

medical examination of the petitioner in the "Flying Branch" in an

arbitrary manner. According to the petitioner, the result of the Air Force

Central Medical Establishment, Appellate Medical Board and Review

Medical Board are contrary to the reports of the Medical Board of the

Coast Guard Selection Board, though the medical examination was

conducted in the same Hospital. Relying on the certificate dated 28th

November, 2011 issued by the Govt. Hospital, B.K. General Hospital,

Faridabad and the certificate dated 28th December, 2011 issued by the

AIIMS Hospital, the petitioner has contended that he does not have

Myopia. In the circumstances, it is contended that the medical

examination by respondent Nos.1 to 6 are not reliable and thus, the

petitioner is entitled to be declared as medically fit for joining the

"Flying Branch".

10. The petitioner after filing the writ petition, filed an additional

affidavit dated 3rd January, 2012 deposing that Myopia is a disorder of

the eye which cannot be cured by way of any course of medicines.

According to the petitioner, Myopia can be corrected only by wearing

eye glasses, or by wearing contact lenses or pursuant to Lasik surgery.

The petitioner states that he has never worn/used any eye glasses, or

contact lenses and had never been operated with Lasik surgery.

11. The petitioner categorically asserted in his additional affidavit

that on 13th December, 2011 he was examined at the Army Hospital,

R&R by Brigadier Parihar and on 14th December, 2011 he was declared

unfit for Flying as well as "ATC/FC" and he was informed about the

finding by Major General, Ved Chaturvedi that his vision is 6/9 in both

the eyes, however, the said finding has not been provided to the

petitioner. Relying on the medical examination carried out at AIIMS, the

petitioner asserted that there is no reflective error/disorder of Myopia in

his eyes. The petitioner further asserted that he even approached a well

reputed and recognized Eye Institute, namely, "Shroff Eye Centre" for

their expert opinion. The said Shroff Eye Centre also declared that the

petitioner does not have any reflective error/disorder of Myopia rather

his vision was measured as 6/4 in both the eyes, which is better than

the parameter required by respondent Nos.1 to 6 as per their

advertisement. On 28th December, 2011, the petitioner had again

approached the AIIMS Hospital where he was examined and it was held

that the petitioner does not have any reflective error/disorder of Myopia

and that his vision in both the eyes is 6/6.

12. According to the petitioner, the examination of respondent

No.3/AFCME, respondent No.4/AMB & respondent No.5/RMB on 28th

October, 2011, 24th November, 2011 and 13th December, 2011 are

contradictory and in variance to the results of examinations carried out

at B.K.Hospital (Govt. Hospital), Base Hospital (Delhi Cantt.)/Indian

Coast Guard, AIIMS, Venu Research Institution and Shroff Eye Institute

which had declared that the vision of the petitioner is 6/6 in both the

eyes and that no reflective error was found in his eyes.

13. The petitioner also disclosed that he has been issued a joining

letter with the Technical Wing of the Air Force and that he has to report

on 6th January, 2012 in Hyderabad. The petitioner asserted that his

sole aim in life is to become a fighter pilot and in the circumstances, the

result of the Medical Board of respondent Nos.1 to 6 should be quashed

and the directions ought to be issued to respondent Nos.1 to 6 to

include the petitioner in the list of "Flying Branch".

14. Learned counsel for the petitioner also relied on a decision of the

Patna High Court in CWJC No.4990/2009, titled as "Gautam Kumar v.

The Union of India & Ors.", which writ petition was disposed of with the

consent of the parties at the stage of admission itself. In that case, the

candidate Gautam Kumar was identified by the doctors of Air Force as

having systolic murmur, however, All India Institute of Medical Science

had certified that the petitioner does not have systolic murmur. In these

circumstances, it was held that the finding of the Appeal Medical Board

of the Air Force could not be sustained and consequently the said

candidate was declared as fit for appointment in the Indian Air Force for

the post he had applied for, by decision dated 12th August, 2009. A

Letters Patent Appeal being LPA No.1371/2009 against the order was

dismissed by order dated 18th December, 2009. A Special Leave Petition

being SLP No.15947/2010 was also filed, titled as „Union of India &

Ors. v. Gautam Kumar‟ was also dismissed by the Supreme Court by

order dated 27th September, 2010.

15. The writ petition is contested by the respondents by contending

that the petitioner was found to have manifest Myopia by the Medical

Board on 28th October, 2011, the Appellate Medical Board on 21st

November, 2011 and by the Review Medical Board on 28th November,

2011.

16. The respondent Nos.1 to 6 contended that since there was a

variance in the opinions of the Medical Board & the Appellate Medical

Board and the opinion given by the AIIMS and the other private

Hospital, a Review Medical Board was duly constituted by the Director

General, Armed Force Military Service. The petitioner was re-examined

at the Army Hospital (R&R), Delhi Cantt on 14th November, 2011 by the

Senior-most Eye Specialist (Ophth) and he had been declared unfit for

09 SSC (M) F(P) on account Myopia but fit for 80 AEC/131 GDOC.

17. Regarding the allegation that the reports by the three Medical

Boards, Initial Medical Board, Appellate Medical Board and Review

Medical Board are different, it was asserted by the learned counsel on

behalf of respondent Nos.1 to 6 that the petitioner was found to have

Myopia by all the three doctors of the respondents who has examined

him. The amount of the myopia as detected by respondent Nos.1 to 6 is

as under:-

"(a) Initial Medical Board __ RE-6/18 LE-6/12

(b) Appeal Medical Board__ RE-6/9 LE-6/9

(c) Review Medical Board__ RE-6/9 LE-6/9"

18. Reliance was placed on IAP 4303 (4th Edition) Para 3.12.3 laying

down that no amount of myopia is acceptable for the "Flying Branch".

Regarding the examination at AIIMS Hospital, it was stated that the

petitioner was examined at AIIMS by a resident of the Hospital and not

by a Faculty Member. It was also stated that the medical standard of

Armed Forces for fitness is at variance with the civilian medical

standards. Reliance was also placed by the respondents on a decision of

High Court of Kolkata in the case of Anupam Ghosh v. Union of India

(FMA No.5749) where the Court held that the norms for the civilian

posts are quite different to what is required in the defense posts.

Reliance was also placed on a decision of this Court in the case of

Prashant Grewal v. Union of India , W.P.(C) No.1962/2010 holding that

the doctors who conducted the medical examination in the civilian

Hospital by virtue of the nature of their duties would not have the

requisite experience for making assessment of fitness for defence forces

and para military forces. Respondent Nos.1 to 6 also contended that a

person would ordinarily be eligible for appointment in the civil post, but

he may not be eligible according to the rigorous medical standards

which are required to be met so far as the defense forces are concerned.

Respondent Nos.1 to 6 further contended that after taking into

consideration the variance in the opinions of the Medical Board and the

Appellate Medical Board and the opinion of the AIIMS Hospital and

other doctors, the Review Medical Board was constituted in order to

have the discrepancy cleared at the highest level. The petitioner was

duly evaluated by a consultant who is one of the Senior Most Eye

Specialist in the Armed Force Medical Services of the Rank of Brigadier

who has confirmed that the petitioner has Myopia. The respondents

also contended that the medical examination report of the Review

Medical Board would be produced before the Court at the time of

hearing, which was duly submitted for this Court‟s perusal on 7th

February, 2012.

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

also heard Col.S. Mathur (AMC) and Wing Commander, R. Mohanty,

Joint Director, Medical Services of the Air Headquarter and has seen

the documents produced by them pertaining to the review medical

board of the petitioner. The petitioner has sought the quashing of the

orders declaring the petitioner unfit for selection for the "Flying Branch"

of the Indian Air Force on the basis of the certificates issued by civilian

medical practitioner declaring him fit and holding that he is not myopic,

whereas, the initial medical board and the appellate medical board had

found the petitioner to be myopic. Since the degree of myopia was found

to be different, therefore, the review medical board was constituted.

20. Col. S. Mathur (AMC) and Wing Commander, R. Mohanty, Joint

Director, Medical Services of the Air Headquarter have explained in

detail about myopia. It is contended that normally vision of a candidate

is tested and if the vision is found to be slightly abnormal then

retinoscopy is also done. According to them, all reflectors have two

component, manifest component and latent component. Manifest

myopia is ascertained by means of a straightforward eye test and if the

candidate is found to have manifest myopia then in some cases

retinoscopy is also done, but if there is manifest myopia, then

retinoscopy is not done.

21. From the Review Medical Board report of the petitioner, it is

apparent that his vision was found to be less than 6/6 and that he had

manifest myopia of -0.5 at 150 Degree. Apparently, the petitioner also

has astigmatism with the reading of -0.5D Cyl. The report produced by

the respondents clearly disclose that the petitioner has manifest

myopia. Col. A.S.Mathur and Wing Commander R. Mohanty further

disclosed that since there was manifest myopia in the case of the

petitioner, though there was no necessity to carry out a retinoscopy,

however, retinoscopy was also done in his case and it was also

indicated on his report as well.

22. Perusal of the review medical board papers also reveals that this

was done by three persons of fairly high ranking and even the petitioner

has not imputed any malafides or bias of any type against them.

23. In the facts and circumstances of the case, on the basis of the

reports obtained by the petitioner from the civilian doctors, it cannot be

held that the petitioner is not myopic. On account of the conflicting

report between the civilian doctors and specialists of the respondents, a

Review Medical Board was duly constituted, which was headed by some

fairly senior ranking officials and in the circumstances, this Court does

not have to sit in appeal over the findings of the review medical board,

nor does it have to overrule the findings of the review medical board on

the basis of the certificates obtained by the petitioner from the civilian

eye specialists. The respondents have also averred in the reply to the

show cause notice that the report obtained by the petitioner from the All

Indian Institute of Medical Sciences reveals that he was examined by a

senior resident of the Hospital and not by a faculty member. In

Prashant Grewal (supra), relied on by the respondents, a Division

Bench of this Court had held that the doctors who conducted the

medical examination in the civilian hospitals, by virtue of the nature of

their duties, would not have the requisite experience for making the

assessment regarding fitness for the defense forces and the para-

military forces. It was further held that the norms for fitness for the civil

post and for the posts in the defense services are quite different, leading

to a candidate ordinarily being eligible for appointment to the civil post,

but inspite of this he may not be eligible according to the rigorous

medical standards of the forces. In the case relied on by the

respondents, the candidate was found to have Esophoria breaking into

Esotropia. The candidate in the said case had also challenged the

outcome of the review medical board conducted by the respondents

which found him unfit for all three services on account of having

Esophoria breaking into Esotropia. He too had relied on a certificate

issued by a senior resident of the All India Institute of Medical Sciences.

The Division Bench had, in the facts and circumstances, placed reliance

on the explanation given by the Wing Commander, R.Mohanty, Joint

Director, Medical Services who had contended that the condition with

which the said candidate was suffering would have seriously impacted

his ability to perceive fast moving objects and thus, the plea of the

candidate that he is fit on the basis of the certificate of the civilian

doctors was declined. In para 8 of the said judgment, the court had held

as under:-

"8. Wing Commander R.Mohanti, Joint Director Medical Services of the Air Headquarter is present in the Court. He has explained that the condition which the petitioner has been found would seriously impact the candidate‟s vision and he would be unable to perceive false moving objects. This is certainly a material consideration so far as the fitness for all the three forces, i.e. the army, navy and air force, is concerned. In view of the opinion of the experts in the specialty concerned."

24. In exercise of its power of judicial review, this Court will not sit in

appeal over the reports given by the civilian doctors and the reports of

the initial medical board of the respondents and the appellate medical

board. On account of the variance in the findings of the various doctors,

a review medical board was constituted by the respondents, which has

also opined that the petitioner has myopia. In the absence of any

procedural irregularity in conducting the review medical board and the

procedure explained by the experts who are present in the Court, this

Court finds no reason to interfere with the findings of the review

medical board on any of the grounds raised by the petitioner. This has

also been explained that the extent of myopia found may vary from one

test to another in a person on account of the various external and

internal factors, though the variance may not be to such an extent as

had been observed by the initial medical board and the appellate

medical board. Despite the variance in the extent of myopia found in

the petitioner, it cannot however, be over looked as the initial medical

board, the appellate medical board and the review medical board have

all found the petitioner to be myopic. It is on account of the extent of

myopia being different, the petitioner was first held to be unfit for the

"Flying Branch" and for enlistment in other branches of the Air Force.

However, pursuant to the findings of the review medical board, the

petitioner was issued the appointment letter for the 80 AEC/131 GDOC

i.e. the "Technical Course" and the petitioner has also joined the same

subsequently. Since the maximum limit of refractive error is different

for enlistment in the different branches of the Air Force, the petitioner‟s

contention that since he is fit for 80 AEC/131 GDOC, he is also fit for

F(P) including WSOs and has a medical category A1G1 cannot be

accepted, nor can this Court give such declaration as has been sought

by the petitioner seeking judicial review of his medical examination.

25. The learned counsel for the petitioner, on the other hand, had

relied on Gautam Kumar (supra), a judgment of the Single Judge of

Patna High Court regarding a candidate who was declared unfit for

recruitment in group X, Technical Trade in the Indian Air Force on

account of having systolic murmur in the heart. The said candidate

was, however, declared not having systolic murmur after examination

by the Cardio Thoracic and Neuro Sciences Centre OPD of the All India

Institute of Medical Sciences. The plea that the conditions of disease for

civilian recruitment and that for recruitment in the force would be

different was repelled on the ground that the disease is the same and it

makes no distinction for employment in the forces or with the civilian

authorities. The decision of the Single Judge was upheld by a Division

Bench of the Patna High Court in Letters Patent Appeal filed by the

respondents and thereafter the special leave petition filed by the

respondents was also dismissed. Apparently, the case relied on by the

petitioner is distinguishable as the petitioner is not suffering from any

disease as was alleged in the case of the candidate Gautam Kumar. In

contradistinction, the case of the petitioner is that of deficiency in his

vision. The civilian doctors have given the certificate that the petitioner

does not have deficiency in vision that is he is not myopic, whereas, the

respondents‟ initial medical board and appellate medical board had held

that he is myopic. On account of the variance of the opinions, a review

medical board was duly constituted which too has opined after

considering the opinions of the civilian eye specialist and the report of

the initial medical board and the appeal medical board, that the

petitioner in fact is myopic. However, it found him to be myopic with a

different degree and reading so as to be fit for 80 AEC/131 GDOC i.e.

the "Technical Course" in the Air Force which the petitioner has joined.

26. The judgment relied by the petitioner is apparently distinguishable.

It must be remembered that the ratio of any decision must be

understood in the background of the facts of that case. What is of the

essence in a decision is its ratio and not every observation found

therein nor what logically follows from the various observations made in

it. It must be remembered that a decision is only an authority for what

it actually decides. It is well settled that a little difference in facts or

additional facts may make a lot of difference in the precedential value of

a decision. The ratio of one case cannot be mechanically applied to

another case without having regard to the fact situation and

circumstances in two cases. The Supreme Court in Bharat Petroleum

Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778)

had held that a decision cannot be relied on without considering the

factual situation. In the judgment the Supreme Court had observed:-

" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

27. In the totality of the facts and circumstances, and for the

foregoing reasons, this Court finds no grounds to interfere with the

decision of the respondents declaring the petitioner to be fit for 80

AEC/131 GDOC, however, declaring him unfit for the "Flying Branch"

F(P) including WSOs. The writ petition in the facts and circumstances is

without any merit, and it is, therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

February 07, 2012 vk