Nikhil Pandey vs Union Of India And Ors.
2019 Latest Caselaw 3000 Del

$~26.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                              Date of Decision: 03.07.2019

%      W.P.(C.) No. 7021/2019

       NIKHIL PANDEY                                        ..... Petitioner
                          Through:     Ms.        Anisha     Upadhyay,
                                       Ms.Rajeshwari,    Ms. Meenakshi
                                       Rawat & Mr. Rajeev Chhetri,
                                       Advocates.



                          versus

       UNION OF INDIA & ORS.                                .....Respondent
                          Through:     Mr. Ajay Digpaul, CGSC and
                                       Mr.Soumava Karmakar, Advocate
                                       along with Lt. Col. Kapil Pandya &
                                       Lt. Col. J.K. Sharma, for the
                                       respondent/ UOI.

       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI
       HON'BLE MR. JUSTICE RAJNISH BHATNAGAR

VIPIN SANGHI, J. (ORAL)

C.M. No. 29288/2019

1. Exemption allowed, subject to all just exceptions.

2. The application stands disposed of.

W.P.(C) 7021/2019 & C.M. No. 29287/2019

3. The petitioner has preferred the present writ petition seeking the following substantive reliefs:

"(i) issue writ of mandamus or any other appropriate writ or direction to the respondents to withdraw/ set aside the decision of the Review Medical Board taken on 12.06.2019, for the TES Course SER No.41, and/ or;

(ii) issue a writ of mandamus or any other appropriate writ or direction to the respondents to conduct a fresh ENT test of the petitioner in view of the independent assessment of two Government Hospitals which have declared the petitioner fit, and/or;... ... ..."

4. The petitioner had participated in the TES-41 Course. On the basis of his marks obtained, he was allotted Batch No. BTES 81109 Roll No. TES- 121105, Chest No.29 by letter dated 25.02.2019 and was called to attend SSB interview to join the Military Academy. He was interviewed and sent for medical check-up by a Medical Board at SMB c/o MH Jalandhar Camp. The Medical Board examined him on 07.03.2019 and declared him unfit on account of CSOM (Left Ear). The petitioner was given the option to appeal at Base Hospital, Delhi Cantt. within 42 days from the date of decision of the SMB. The petitioner states that he consulted various ENT specialists and he was advised that his medical condition was fully curable. He underwent Tymnoplasty with Mastoidictomy at Ganga Ram Hospital on 14.03.2019. The petitioner states that the said surgery requires 12 weeks for full recovery - which expired on 07.06.2019. The petitioner also challenged

the decision of the SMB before the Appellate Medical Board at Base Hospital, Delhi Cantt. He was examined on 18.04.2019 by the AMB and declared as temporary unfit. He then preferred a review. He was examined by the Review Medical Board on 08.06.2019 but was again declared medically unfit on 12.06.2019. The petitioner states that he got himself medically examined at AIIMS as well as Ram Manohar Lohia Hospital in Delhi and the ENT specialists at both the hospitals declared him medically fit and fully cured of the medical condition found by the respondents. He represented to the respondents seeking medical re-examination but did not receive any response and consequently he has filed the present writ petition.

5. Mr. Digpaul has appeared on advance notice. He is assisted by Lt. Col. Kapil Pandya. Lt. Col. Kapil Pandya is a medically qualified [M.D. (Public Health)] doctor. We have heard learned counsel for the petitioner as well as Mr. Digpaul and interacted with Dr. Pandya.

6. In cases like the present, we are faced with a dilemma. On the one hand, we have a young candidate who is rearing to join one or the other forces to serve the nation. Sometimes, he suddenly realises that he is medically unfit upon his medical examination by the respondents - who conduct such examination keeping in view the medical standards required in the light of the job requirements. Such like candidates often approach this Court after obtaining medical certificates from other reputed hospitals, or institutions such as the AIIMS, Safdarjung Hospital, Ram Manohar Lohia Hospital, etc. On the other hand, are the reports of the Medical Board, Appellate Medical Board and the Review Medical Board conducted by the

respondents, wherein the candidate is found to be unfit. Such Medical Boards are conducted by qualified and competent doctors and, invariably, there are no allegations of mala fides in the making of their report.

7. Of and on, this Court has passed orders directing re-examination of candidates by independent and reputed institutions such as the R&R Army Hospital etc. to grant yet another opportunity to the, otherwise, meritorious candidates.

8. Dr. Pandya has explained to us the nature of the petitioner's medical condition. He has explained that despite the surgery undergone by the petitioner, if the petitioner is subjected to rigorous conditions - such as in war zones, he may not be able to withstand the sound trauma generated by the firearms and ammunition.

9. These are aspects which, obviously, are not present to the mind of the medical doctors who examined the petitioner either at AIIMS, or at RML Hospital. Thus, in such like cases, medical certificates obtained by the candidates from otherwise reputed medical institutions have to be taken with a pinch of salt, since they are not aware of the context in which the medical examination of the person requires to be undertaken. The Medical Boards constituted by the Armed Forces to examine the candidates conduct medical examination keeping in view their own high standards and job requirements. There is no whisper, much less an allegation of any bias against the candidate. The doctors who constituted the Medical Board, the Appellate Medical Board and the Review Medical Board are also competent and senior medically qualified doctors, and there is no reason as to why their decision

should be called into question.

10. We are, therefore, not inclined to interfere with the rejection of the petitioner's candidature on account of his medical unfitness.

11. Keeping in view the large number of cases in which the medically unfit candidates go to one or the other government hospitals and obtain medical reports of fitness, we direct all government hospitals such as the AIIMS, Safdarjung Hospital, Ram Manohar Lohia Hospital, and all other medical hospitals and institutions to be cautious while issuing such like fitness certificates. Unless the candidate has brought to the notice of the examining doctor the medical reports and assessment conducted by the recruiting department, and placed before him the said reports, and unless they are taken note of in the medical certificates issued by the government hospital, in our view, such like privately obtained medical reports cannot be relied upon, in such like situations. In such like situations, the medical certificates should also clearly state that the doctor issuing the certificate has examined the medical reports adverse to the candidate/ patient; that he/ she is aware of the requirements of medical standards for the post concerned, for which the candidate/ patient is obtaining the medical certificate, and; that he does not agree with the findings in the said report for disclosed reasons. The name and designation of the doctor issuing such certificate should also be clearly disclosed in the certificate. Only if such certificates are issued, they should be placed before the Court and may be relied upon by the candidates to persuade this Court to examine the matter. This direction should be communicated to the Medical Superintendents of all government hospitals in

the NCT of Delhi for strict compliance.

12. Dasti.

VIPIN SANGHI, J.

RAJNISH BHATNAGAR, J.

JULY 03, 2019 B.S. Rohella