Sh.Shubham Mahendrawal vs Union Of India & Anr.
2012 Latest Caselaw 623 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 WP(C) No.5500/2011

%                             Date of Decision: 30.01.2012

Sh.Shubham Mahendrawal                                               .... Petitioner

                          Through Mr.N.D.Kaushik, Advocate.


                                      Versus

Union of India & Anr.                                              .... Respondents

                          Through Mr.Ravinder Agarwal, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA


ANIL KUMAR, J.

*

1. The petitioner has sought directions to the respondents to

withdraw/set aside the letter dated 5th January, 2011 intimating the

petitioner that he has been found unfit in SMB at MH Allahabad, in the

AMB at Base Hospital, Delhi Cantt and in RMB at the Army Hospital

(R&R) for the TES Course SER No.24 and for directions to the

respondents to conduct a fresh eye test of the petitioner by an

independent eye Hospital/center for night visual capacity. The

petitioner has also sought directions to the respondents to reconsider

the candidature of the petitioner on the basis of the fresh eye test report

from an independent eye hospital.

2. The relevant facts to comprehend the controversies are that the

respondents had invited applications from the candidates for the TES-

24 course. On the basis of the eligible cut off percentage of marks

obtained by the petitioner, he was allotted batch No.HTES-64994 Roll

no. 3458, Chest No.28 by letter dated 2nd September, 2010 and was

called to attend the SSB interview for joining the Military Academy.

Pursuant to the intimation received by the petitioner he appeared in the

interview at Allahabad on 26th October, 2010 and after the interview the

petitioner was recommended for a medical checkup by a medical board

to be held at SMB c/o. MH Allahabad. The medical board at SMB MH

Allahabad on 4th November, 2000 examined the petitioner and declared

him unfit on account of Multiple Lenticular Opacities (B.E).

3. The petitioner disclosed that he was given the option for two

appeals. The first appeal was in AMB at Base Hospital, Delhi Cantt. On

30th November, 2010 the petitioner was again marked medically unfit

on account of Multiple Lenticular Opacities (B.E) Dr. Colonel Sirohi by

the Head of the Department of the Eye Department. The petitioner

thereafter, opted for a 2nd appeal in the RMB at Army Hospital, Delhi

Cantt. The petitioner in the second appeal was again examined on 24th

December, 2010 and was declared medically unfit by Dr.Colonel Parihar

(HOD) Eye Department.

4. After being declared medically unfit by the medical board at SMB

MH Allahabad and the two appellate boards, the petitioner

independently got himself examined from the All India Institute of

Medical Sciences and from the Guru Nanak Eye Center, New Delhi.

5. According to the petitioner the All India Institute of Medical

Sciences and Guru Nanak Eye Center declared the petitioner medically

fit for the alleged reasons of vision for which he had been declared unfit

by the respondents.

6. The petitioner was declared medically unfit by the respondents by

communication dated B/51723/10+2/TES/Rtg.SE dated 5th January,

2011. Aggrieved by the actions of the respondents of declaring the

petitioner to be medically unfit, the petitioner filed a writ petition being

W.P(C) No.2978/2011.

7. The writ petition being W.P(C) No.2978/2011 was contested by

the respondents and during the arguments, the petitioner had referred

to the medical references regarding the effect of the Blue Dot Cataract

on the Central visual axis of the eye. The petitioner, however, had not

raised any such plea about the effect of the Blue Dot Cataract on the

Central visual axis in his writ petition. The petitioner, therefore

withdrew the writ petition with the liberty to file a fresh petition on the

same cause of action, in order to urge that the effect of the density of

the Blue Dot opacities on the periphery area of the eye viz-a-viz the

central visual axis of the eye, does not affect the night vision abilities of

the petitioner and therefore it does not lead to such an unfitness in the

petitioner so as to render him ineligible for the TES-24 course.

8. The petitioner thereafter, has filed the present petition contending

inter-alia that the concentration/density of Blue Dot Opacities in the

case of the petitioner is prevalent at the periphery area of the eye which

has no night vision abnormalities. In support of his plea the petitioner

even got himself examined from the Guru Nanak Eye Center, Delhi for

the night vision test. According to the petitioner, test again revealed

that the Blue Dot Cataract in the eyes of the petitioner does not affect

his night vision which has been wrongly held by the respondents.

Relying on the counter affidavit which was filed by the respondents in

the writ petition being W.P(C) No.2978/2011, the petitioner asserted

that the documents relied on by the respondents reveal that the

petitioner was not even tested for night visual capacity by the

respondent either at the Military Hospital, Allahabad or at the Base

Hospital, Delhi Cantt or at the Army Hospital (Research & Referral). In

the circumstances, the petitioner contended that the order to declare

him unfit is perverse and is unjust and is in violation of the principle of

equity, good conscious and natural justice.

9. The writ petition is contested by the respondents who filed a reply

to the show cause notice contending inter-alia that the petitioner was

examined at three places and that all the medical boards had opined

that the petitioner suffers from Multiple Lenticular Opacities because of

which the petitioner was declared medically unfit. Referring to the

decision of the appeal medical board and the review medical board, the

respondents have pleaded that the petitioner had been thoroughly

examined by three different senior eye specialists, who found that the

petitioner has Multiple Lenticular Opacities (Blue Dot Opacities) in both

eyes and that the Blue Dot Opacities were numerous and occupying all

the parts of the lens including the central axis of the eye.

10. The respondents categorically asserted that the Blue Dot

Opacities could interfere with the functioning of the eyes in the low light

and low contrast situations and could affect the performance of the

military duties such as at night and low light operations and that such

a problem could have the consequence of poor vision and could further

result in danger not only to the individual but also to those under his

command and, therefore, the petitioner is unfit. Commenting on the

opinion obtained by the petitioner from the other institutes, the

respondents contended that it is not disputed even by the other

institutions from where the petitioner has obtained the reports that the

petitioner suffers from Blue Dot Cataract. The respondents asserted

that the civil hospitals had examined the petitioner from a different

angle and have not taken into consideration or into account the type of

duties the petitioner would be required to perform in the military

service. They contended that the petitioner may be medically fit for

performing some of the civil services, however, the requirements under

the civil services cannot be extrapolated to infer his fitness for the

military service, as the job profile and requirements of the duty of

Military services are different.

11. Therefore it is contended on behalf of the respondents that the

petitioner does not fulfill the standards of medical fitness required for

military service as the medical fitness standards required for military

service are vastly different from those required for any other services.

12. The respondents refuted the allegation that the petitioner has

been discriminated against in conducting his medical examination. The

petitioner was rather given two appeals to be re-examined, the appeal

medical board and the review medical board, however, all the three

boards of the respondents declared the petitioner medically unfit,

therefore bias on the part of either of the boards cannot be claimed by

the petitioner.

13. The respondents also asserted that although the civil hospitals

have given a contradictory opinion despite the petitioner having Blue

Dot Opacities, however, the degradation of the vision under the service

conditions, training and combat are not well known to civilian

ophthalmologists and the same cannot always be duplicated within

laboratory scenarios. Regarding the results of Electroretinography(ERG)

the respondents have contended that the test is merely an indicator of

general health of the retinal cells and does not give any indications of

the visual acuity of the individual, nor does it indicate as to how the

acuity may degrade under marginal conditions since it tests only the

response of the retinal cells and not the opacities in the structures in

front of the retina.

14. The petitioner also filed a rejoinder to the reply filed by the

respondents and contended that perusal of the three medical

examination reports of the petitioner rendered by the respondents

would unequivocally shows that no tests have been conducted to

evaluate the vision of the petitioner at night. The petitioner has

contended that Blue Dot Cataract usually forms in the first two decades

of life and that the opacities are usually stationary and do not affect

vision. The petitioner has also relied on the para expounding on the

aspect of Blue Dot Cataract in the chapter titled as "Diseases of the

lens" which is as under:-

"2. Blue dot cataract. It is also called cataracta-punctata- caerulea. It is usually forms in the first two decades of life. The characteristic punctuate opacities are in the form of rounded bluish dots situated in the peripheral part of adolescent nucleus and deeper layer of the cortex. Opacities are usually stationary and do not affect vision. However,

large punctuate opacities associated with coronary cataract may marginally reduced the vision."

15. In the circumstances, it was contended that in the case of the

petitioner, the Blue dot opacities are concentrated at the periphery area

of the eye which has no night vision abnormalities. By relying on the

report of the Guru Nanak Eye Centre, New Delhi, the petitioner has

further asserted that it has been wrongly held by the respondents that

the night vision of the petitioner is ineffective on account of the blue dot

cataract. The petitioner has also claimed that if there is any specific test

available at the All Indian Institute of Medical Sciences to evaluate the

petitioner‟s vision in dim light conditions at night, then the Courts

should direct the respondents for conducting such a test for the

petitioner. However, the averments made on behalf of the respondents

that the petitioner has numerous blue dot opacities occupying all parts

of the lens including the Central visual axis of the eyes has not been

specifically denied by the petitioner.

16. This Court has heard the learned counsel for the parties in detail.

This has not been disputed by either of the parties that the petitioner

suffers from Multiple Lenticular Opacities (BE). The first dispute is

whether the blue dot cataract found in the eyes of the petitioner is

confined and concentrated at the periphery area of the eye or are there

numerous blue dot cataracts occupying all parts of the lens including

the central axis of the eye. No prejudice and bias has been attributed by

the petitioner against the respondents. The medical examination reports

of the petitioner by the respondents categorically reveals that extensive

blue dot lenticular opacities were found in both the eyes of the

petitioner. This is the finding of the medical board of the respondents

comprising of three experts, Major General L.R. Sharma, Major General

Prakash Singh and the Air Marshal K.M.Suryanarayana, President of

the medical board. The review medical board also opined extensive blue

dot opacities occupying all parts of the lens including the central axis of

the eyes. Even the Guru Nanak Eye Centre, New Delhi where the

petitioner had got himself examined as an outpatient, in its prescription

had recorded that the petitioner was declared medically unfit in the

Army entrance. It was also stipulated that the petitioner does not have

any night vision abnormalities, though it was further clarified that both

the eyes have congenital blue dot cataract which however does not

cause any visual disturbance to the patient and that he is otherwise fit

to do all works.

17. Be that as it may, the opinion of a medical board comprising of

three specialists of the rank of Major General and Air Marshal cannot to

be completely ignored.

18. In Union of India & Ors. v. Keshar Singh, (2007) 12 SCC 675;

Controller Defence Account (Pension) & Ors. v. S. Balachandran Nayar

(2005) 13 SCC 128; Union of India & Ors. v. Dheer Singh China

Col.(Retd.), (2003) 2SCC 382 and Union of India & Ors. v. Baljit, (1996)

11 SCC 315 it was held that the opinion of the medical board of the

respondents which comprises of experts, was to be given primacy in

order to infer whether the injuries sustained by the Army personnel

were due to Military services, or was aggregated by the Military services

inorder to ascertain if the said army personnel were entitled to receive

any disability pension..

19. The respondents have categorically asserted that the petitioner

has opacities in both the eyes, which has not been denied by the

petitioner. It has further been contended by the respondents that in

view of the medical condition of the petitioner in low light and low

contrast situations the performance of his Military duties could be

interfered with and that the consequences of the poor vision could also

result in danger not only to the petitioner but to all those who may be

put under his command. In view of the conflicting opinion by the

Civilian Ophthalmologist, there may be the possibility of the petitioner

not having an extreme disability in his eyes for light and low light

operations, however, if the respondents do not want to take any

chances in these circumstances, and put any person under the

command of the petitioner, the petitioner does not have a right to insist

that they must do so. In the absence of any bias or mala fides against

them, they are the best judge of their standards of requirements and to

hold whether a particular person is fit or unfit to render services

according to their requirements. Though the petitioner has contended

that if there is any specific test available at the All India Institute of

Medical Sciences to substantiate and evaluate the petitioner‟s vision in

dim light conditions then this Court may direct the respondents to test

the petitioner for the same. However, this Court in these circumstances

does not deem it necessary to neither ascertain whether any such test

is available or not, nor direct the respondents to get such test carried

out on the petitioner. This is not disputed that the petitioner does have

blue dot cataract. Had the conflicting opinion been about the very

existence of the blue dot cataract, then it would have been an

appropriate situation, for this Court to have directed for another

opinion to ascertain the same. But since this is not disputed that the

petitioner has blue dot cataract, then whether or not this blue dot

cataract of the petitioner‟s will impact the performance of the petitioner

in discharging his duty has to be left to the discretion and judgment of

the respondents so long as there is no mala fides, prejudice or any sort

of bias alleged against the respondents. If the respondents do not want

to take any chances regarding the performance of the duties by a

particular individual, then they cannot be forced to enlist the person

who has a medical abnormality which may or may not affect the

performance of the duties by such an individual.

20. For the forgoing reasons, and in the facts and circumstances, it

will not be appropriate for this Court in exercise of its jurisdiction under

Article 226 of the Constitution of India to issue any writ directing the

respondents to reconsider the candidature of the petitioner after

conducting a fresh eye test of the petitioner, nor is there any ground to

set aside the letter dated 5th January, 2011 holding that the petitioner

is unfit in SMB, AMB and in RMB for the Test Course SER No.24. The

petitioner is not entitled for the relief claimed by him. The writ petition

is therefore, dismissed.

ANIL KUMAR, J.

J.R.MIDHA, J.

January 30, 2012 „k‟