Delhi High Court
Gc Ketan Bhateja vs Union Of India & Ors. on 27 May, 2014
I~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 27th May, 2014
+ W.P.(C) 5903/2013
GC KETAN BHATEJA ..... Petitioner
Through : Major K.Ramesh and Ms.Archana
Ramesh, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through : Mr.Joginder Sukhija, CGSC.
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI
PRATIBHA RANI, J. (ORAL)
1. This is the third round of litigation by GC Ketan Bhateja, petitioner
herein, in his effort to get inducted again in Officers' Training Academy at
Chennai. After being declared medically unfit and given an opportunity
through show cause notice dated 08th May, 2012 (Annexure P-3), the
petitioner was withdrawn from the Academy vide communication dated 13th
August, 2012. In an effort to prove himself to be fit for undergoing the
training and join the forces, the petitioner got himself medically examined at
Super speciality hospitals and Dr.V.P.Choudhry, a reputed Hematologist,
who has also been the Professor and Head of Dept. Of Hematology, AIIMS
and Medical Adviser to Armed Forces Medical Services and though he was
diagnosed with Thalassemia Trait, but it was having no functional disability.
He thus filed WP(C) No.7084/2012.
2. Looking into the facts and circumstances, narrated in WP(C) No.
7084/2012, this Court passed the following order on 09th November, 2012:
"1. Cutting through the technicalities in view of the fact
that the petitioner is a young lad and was a cadet at the Officers‟
Training Academy, Chennai; he has been withdrawn on medical
grounds, we direct that the statutory complaint (Annexure P-5)
annexed with the writ petition be re-filed by the petitioner along
with the annexures to the statutory complaint which would be
treated as an appeal against the order dated August 13, 2012 and
shall be decided within four weeks of receipt.
2. The appeal would be filed by Regd. A.D. post. Appeal
would be filed positively within 2 weeks from today.
3. The writ petition stands disposed of.
4. No costs.
5. Dasti."
3. Pursuant to this order, the petitioner herein filed a statutory complaint
before the Chief of Army Staff, Army HQ, South Block, New Delhi. While
dealing with the said complaint, the concerned officer was of the view that
the writ petitioner was not entitled to submit statutory complaint under the
Army Act Section 26 & 27 read in conjunction with Para 364 of
Regulations for the Army (Revised Edition 1987), since he was not under
the Army Act and his case was required to be processed by the MT Dte, as
per existing procedures. Despite that the representation of the petitioner was
processed by the Chief of Army Staff Secretariet (Complaints Advisory
Board) as a one time exception to save time and to avoid contempt of Court.
The statutory complaint was thus entertained, but rejected for the reasons
detailed in the order dated 06th February, 2013.
4. W.P.(C) No.309/2013 was also filed by the petitioner herein, but in
view of the order on the statutory complaint, the same was dismissed as
withdrawn for the reason that the petitioner wanted to approach the Court
with the same grievance and to challenge the order of Chief of Army
Staff(COAS), dismissing his statutory complaint.
5. The petitioner then filed this writ petition under Article 226 of the
Constitution of India being, WP(C) No.5903/2013, praying for quashing of
order dated 06th February 2013 and the direction to get him medically
examined by All India Medical Institute of Medical Sciences and if found fit
in functional criteria, to be reinstated to Officers' Training Academy.
6. This Court, vide order dated 17th September, 2013 while accepting the
prayer of the writ petitioner to get himself again medically examined, issued
the following directions.
"..................In order to obviate any controversy, we deem it
appropriate that the petitioner be subjected to a medical
examination.
In view thereof, we direct as follows:-
(i) The petitioner shall appear before the Commandant, Army
Hospital (Research & Referral), Delhi Cantt., New Delhi
with all records of his medical examination and treatment,
if any, which may be in his power & possession at 11.00
am on 10th October, 2013.
(ii) The respondents shall also ensure that the complete
original record relating to the medical examinations of the
petitioner is placed before the Commandant, Army
Hospital (Research & Referral) on the 10th October, 2013.
(iii) The Commandant, Army Hospital (R & R) is directed to
constitute a Board of Specialists/Experts for examination
of the petitioner in the matter. The records which are
produced by the petitioner as well as the respondents shall
be placed before the Board so constituted.
(iv) The Medical Board, constituted in terms of our order shall
be at liberty to examine the petitioner as well as the above
records produced by the parties on a date and time
appointed by it which shall be informed to both parties.
The Board shall thereafter take an independent view in the
matter uninfluenced by the reports produced by the
parties.
(v) It shall be open to the Board to conduct any test as may be
required.
(vi) The report by the Army Hospital (R & R) shall be sent to
this court before the next date of hearing.
(vii) List this matter before court for awaiting outcome of the
report on 03rd December, 2013.
Dasti to counsel for the parties."
Pursuant to the directions, the Medical Board was constituted comprising
of three Experts and the petitioner was examined. Vide communication
dated 25th November, 2013, the report has been sent to this Court. We have
perused the report. The opinion of the Board of Officers is to the following
effect :
„OPINION OF THE BOARD OF OFFICERS :
(a) Thalassemia trait (also known as thelassemia minor or a carrier
state) is a condition characterized by low haemoglobin (Hb) and
changes in red cell morphology and physiology. The low Hb is due to
a defect in haemoglobin (Hb) protein molecule since birth due to
inheritance of thalassaemia trait as a single allele. Since disease is
autosomal recessive, these carriers do not have clinical complications
even though they have a partially defective gene. Still they have a low
Hb throughout their life. It cannot reach the normal level whenever
required by any physiologic situation like exposure to high altitude or
hypoxia due to rapid ascents as in fighter planes. The condition is as
such consistent with a normal life except that Hb remains low. It does
not pose any problems except :
(i) Whenever a person moves to a high altitude area, the
process of acclimatization gets affected and the expected rise in
the Hb (to ensure optimal pressure of oxygen in blood) does not
take place and person remains in otherwise a risk of
complications developing due to this low pressure oxygen in
blood. This process of acclimatization is important for a
physiological life at high altitude area. It is pertinent to bring
out at this stage, that defence personnel, officer as well
subordinate staffs get 3-4 tenures at HAA during their carriers.
(ii) There are reports that people with low Hb due to
thalassaemia trait have a high incidence of sick reports due to
symptoms of anemia which include lethargy, fatigue and
dizziness. Also they were seen to have higher incidence of
episodes of fever as compared to those not possessing these
traits.
(iii) They have a higher incidence of enlarged spleen. It may
or not be palpable but it has been documented to be increased
in size. This was confirmed by ultrasonographic examination.
(iv) Moderate to mild jaundice due to unconjugated
hyperbilirubinemia is a frequent finding in people with
thalassemia trait. The jaundice is typically precipitated by any
stress/trauma/infection. People with thalassemia trait are
usually picked up in armed forces when they report sick to their
doctors with jaundice.
(b) Keeping all these factors in mind it appears prudent to keep up the
practice of rejecting such persons for recruitment to armed forces. It
is true most of them may not get any life threatening complications
even but there is a possibility that during their training and later
during service in armed forces they may not be able to adapt to
strenuous exercises or extreme climatic conditions when they are
likely to get exposed to such conditions. They may develop symptom
of lethargy, fatigue, dizziness etc. and may not be able to either
complete their training or later delivery or their military duties. This
will result in suboptimal performance of their duty and may affect
their careers as well as unnecessary burden on services.
(c) Hence it is recommended that a status given may be maintained as
far as recruiting policy is concerned.‟
7. On behalf of the petitioner, it has been submitted that with reports
from the super-speciality hospitals regarding functional ability of the
petitioner to discharge his duties and the fact that many officers suffering
from this kind of ailment had been discharging their duties efficiently, there
is no reason why the petitioner be discriminated by declaring him medically
unfit to perform his duties when his performance in the Academy was
excellent.
8. Learned counsel for the writ petitioner, Major K.Ramesh, has also
referred to the declaration of Air Marshal Bharat Kumar (Retd.), annexed
with the writ petition, who also suffered from Thalassemia trait and had
successfully completed his tenure and now superannuated.
9. In order to appreciate the contention of the writ petitioner, let us see
the declaration of Air Marshal Bharat Kumar (Retd.) as given on page 36 of
the writ petition, which is extracted hereunder:-
"TO WHOMSOEVER IT MAY CONCERN
It is to certify that I, Air Marshal Bharat Kumar (Retd.)
joined National Defence Academy on 22nd July, 1955 and was
commissioned into Indian Air Force on 19th December, 1959. I
superannuated from service on 30th April, 1997.
I also certify that I was tested for thalassemia in the year
2000 and it was found that I had thalassemia trait."
10. A perusal of this declaration makes it ample clear that Air Marshal
Bharat Kumar (Retd.) was tested for Thalassemia trait in the year 2000, i.e.
after about three years of his superannuation. The case of the present writ
petitioner is that he was tested for Thalassemia trait during the course of his
training. Thus, his case cannot be compared with that of the superannuated
Officer, who was never detected for Thalassemia trait either during his
training or after being commissioned in Air Force till he superannuated.
11. Since the petitioner has been declared unfit for Army, by the Medical
Board constituted pursuant to the direction of this Court dated 17 th
September, 2013, this Court in exercise of writ jurisdiction, cannot substitute
the opinion of the Medical Board. Hence, nothing further survives to be
considered in the present writ petition, which is accordingly dismissed.
12. No order as to costs.
PRATIBHA RANI, J
REVA KHETRAPAL, J
May 27, 2014/„st/dc‟
