Cadet Vivek Boora Minor ... vs Union Of India & Ors.
2015 Latest Caselaw 4102 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Judgment Reserved on: May 19, 2015
%                                   Judgment Delivered on: May 21, 2015

+                        W.P.(C) 1280/2015

       CADET VIVEK BOORA MINOR
       REPRESENTED BY:
       RAGHBIR SINGH BOORA                            ..... Petitioner
                    Represented by:        Mr.S.R.Kalkal, Advocate

                         versus

       UNION OF INDIA & ORS.                          ..... Respondents
                     Represented by:       Mr.Sanjeev Narula, Advocate
                                           with Mr.Ajay Kalra, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J.

1. The Medical Board at the Military Hospital, Dehradun, declared the petitioner temporarily unfit on December 08, 2014 with the opinion that he was detected with : 'B/L Renal Calculus'. Having got himself admitted at the Army Hospital (R&R), Delhi Cantt. on January 04, 2015, the petitioner underwent Retro Intro Rend Surgery (RIRS), meaning thereby a small calculus (stone) of diameter 0.48 mm was removed.

2. The procedure to remove the calculus was not by operating as conventionally understood. An urethoscope was inserted. The stone was visualized and fragmented. The fragments were removed with the help of stone basket.

3. The petitioner reported to the Command Hospital at Lucknow for Appeal Medical Board on January 07, 2015 but was declared unfit. The reason for unfit declared was : 'Surgically unfit for Renal Stone (Lt) and spina bifida S1-S2'.

4. The petitioner questions he being declared unfit despite undergoing a non-surgical intervention for removing the renal calculus. It is the case of the petitioner that the stone in the left kidney of 0.48 mm diameter having been removed there is no reason to declare the petitioner unfit.

5. The issue concerns medical jurisprudence. Dr.Amit Aggarwal, a specialist doctor in the Army Medical Corps handed over to us relevant medical jurisprudence.

6. The Indian Journal of Endocrinology and Metabolism, 2012 March- April contains an article by experts on the subject based on empirical data. The topic is 'Protocol-based metabolic evaluation in high-risk patients with renal stones in North India'.

7. With reference to the data the article informs that renal calculus disease has a lifetime recurrence rate of 80%.

8. Now, what is spina-bifida? We need to discuss for the reason result of the Appeal Medical Board opines unfitness of the petitioner on two objective grounds. One of which is spina-bifida.

9. The medical jurisprudence produced evinces that spina-bifida is a type of birth defect called a neural tube defect. It occurs when the bones of the spine (vertebrae) do not form properly around part of the baby's spinal cord. Spine-bifida can be mild or severe. The mild form is the most common. It usually does not cause problems or requires treatment and hence can be ignored. Most people with this form do not know that it exists

until they get a back X-ray for some other reason. A rare and more severe form is meaningocele. In this form, the fluid leaks out of the spine and pushes against the skin. One may see a bulge in the skin. In many cases there are no other symptoms. The most rare and severe form is myelomeningocele. This is what most people mean that when they say 'spina-bifida'. Part of the spinal nerves push out of the spinal canal, and the nerves are often damaged. You may see a bulge in the skin. In some babies, the skin is open and the nerves are exposed.

10. The exact cause of this birth defect is not known. Experts think that genes and the environment are part of the cause, for example, women who have had one child with spina-bifida are more likely to give birth to another child with the same disease. Women who are obese or who have diabetes are also more likely to have a child with spina-bifida.

11. Viewed separately and independently; meaning thereby if a person has the disability only of spina-bifida or only of an operated renal calculus, he may be declared fit in appropriate cases. But what happens if both disabilities occur in the same individual?

12. A study conduct on 260 patients reveals that recurrence of stones in the kidney or the bladder is ten times more in people who suffer from spina- bifida.

13. The petitioner had a stone in the left kidney which was removed and being detected with spina-bifida the possibility of recurrence or reformation of the stones in the petitioner's kidney or the bladder is ten times more than a person who does not have spina-bifida.

14. It cannot be overlooked that the petitioner seeks employment in the Indian Army.

15. As long as the respondents justify the reasons to declare petitioner unfit based on medical jurisprudence, it would be a ground to reject the claim of the petitioner for the reason the arguments advanced by the learned counsel for the petitioner was that the reason to declare petitioner unfit is the likelihood of stone formation in his kidney or bladder recurring which accordingly to learned counsel was speculative.

16. The justification given by the respondents is not speculative. It is based on empirical data. The empirical data is that a person who has spina- bifida as also renal calculus, may have the calculus removed, but the probability of recurrence is ten times more than a person who does not have spina-bifida. Besides, medical literature shows that the possibility of renal calculus recurring in a life time has a rate of 80%.

17. Scrutiny on medical standards has to be strict for those who seek employment in armed forces.

18. The writ petition is dismissed.

19. No costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE MAY 21, 2015 skb