Kamal Sharma vs Union Of India And Ors
2016 Latest Caselaw 3794 Del

$~13.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 4600/2016
        KAMAL SHARMA                            ..... Petitioner
                   Through: Mr. Ankur Chhibber, Advocate with
                   Mr. Ajit Kakkar, Advocate

                           versus

        UNION OF INDIA AND ORS                     ..... Respondents
                      Through: Ms. Barkha Babbar, Advocate

        CORAM:
        HON'BLE MS. JUSTICE HIMA KOHLI
        HON'BLE MS. JUSTICE DEEPA SHARMA

                           ORDER

% 19.05.2016

1. The present petition has been filed by the petitioner praying inter alia

for quashing the order dated 20.02.2016, passed by the respondents/Indian

Navy, whereunder he has been declared medically unfit and his candidature

for the post of a Sailor has been cancelled.

2. Learned counsel for the petitioner submits that after clearing the

written examinations for the post of a Sailor in the Indian Navy in the year

2015, the petitioner was called upon to appear for his medical examination

on 20.02.2016 at INS Chilka, Odisha and was declared unfit by the

impugned rejection letter dated 20.02.2016 on the ground that he is suffering

from "COM(LT) & SMALL PERFORATION" i.e., the tympanic membrane

of his right ear is ruptured. Immediately after returning, the petitioner had

approached Pt. B.D. Sharma PGIMS, Rohtak, where he underwent a graft

for the right ear and as per the report of the Senior Resident of the aforesaid

Hospital, a surgical procedure was done and a graft was placed on the

tympanic membrane of the petitioner's right ear.

3. Counsel for the petitioner states that the petitioner's right ear has

completely healed, whereafter he had undergone an Audiometry Test as per

the documents placed at pages 24 and 25 of the paper book, which are

reports from Rao Tula Ram Memorial Hospital, New Delhi and therefore,

the impugned order dated 20.02.2016, whereunder the petitioner's

candidature was cancelled, ought to be set aside.

4. Counsel for the respondents, who appears on advance notice, states on

instructions from the Department that from the medical condition of the

petitioner, it is apparent that he had to undergo a surgical procedure of fixing

a graft on the tympanic membrane of his right ear and in the course of his

service as a Sailor, he would be expected to stay underwater on occasions,

which could result in excessive pressure on the ears resulting in rupturing. It

is in these circumstances that the petitioner's candidature was turned down.

5. It is an undisputed position that even as per the documents placed on

record by the petitioner, he had a rupture on the tympanic membrane of the

right ear, which was rectified through a surgical intervention by fixing a

graft. In these circumstances, we are of the opinion that the

respondent/employer would be the best person to exercise their discretion

with regard to the fitness of a candidature for being recruited for the post of

a Sailor. The parameters of fitness and the required standards for

appointment of a candidate in the Forces, have to be left to the discretion of

the respondents.

6. In view of the aforesaid circumstances, we are not inclined to

entertain the present petition by exercising our powers of judicial review.

The petition is dismissed.

HIMA KOHLI, J

DEEPA SHARMA, J MAY 19, 2016 rkb/mk