Jammu & Kashmir High Court
Union Of India vs Neeraj Sharma on 23 December, 2021
Sr. No. 13
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CJ Court
Case: LPA No. 101 of 2019
Union of India .....Appellant/Petitioner(s)
Through :- Sh. Vishal Sharma, ASGI.
v/s
Neeraj Sharma .....Respondent(s)
Through :- Sh. Roop Lal, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
1. Heard Sh. Vishal Sharma, learned Assistant Solicitor General of India
and Sh. Roop Lal, learned counsel for the respondent.
2. The appeal has been preferred against the judgment and order dated
27.02.2019 passed by the learned Single Judge allowing writ petition (SWP)
No. 60/ 2018.
3. The respondent was selected for appointment as General Duty Soldier in
the Army after undergoing preliminary medical examination. However, he
could not be sent for training within 180 days of the selection. Therefore, he
was required to undergo a medical examination again. In this medical
examination, he was declared unfit on the ground that he has suffered from
post auricular scar left and operated tympanic membrane left. In view of the
aforesaid medical report of the Army Medical board, the respondent was not
sent for training.
4. The respondent produced a certificate from the Department of ENT
Government Medical College, Jammu, declaring him to be within the normal
limits. On that basis, he insisted that his selection should be maintained and he
should be allowed to go on training.
5. The writ petition filed by the petitioner for the above relief was allowed
by the learned Single Judge with the direction to the respondent to constitute a
Medical Board to reconsider the medical status of the respondent as to whether
he is suffering from any hearing impairment which may disable him from
seeking appointment pursuant to his selection as General Duty Soldier in
Indian Army.
6. In challenging the aforesaid judgment, the submission of Sh. Vishal
Sharma is that the opinion of the Army Medical Board should always prevail
over the certificate of any private/ Government Organizations inasmuch as the
Army Medical Board is well-versed with the intricacies of the job and knows
better if a particular candidate is medically suitable for the Army or not. He
further submits that there has to be finality to the candidature and that it may
not be allowed to keep varying on the basis of various reports submitted by
either of the parties.
7. There is no dispute to the fact that the Army Medical Board is a
specialized Board and its opinion in the matter of recruitment of persons in the
Army would definitely have priority in comparison to the medical opinions
expressed by any other private institutions or the Government institutions.
However, the fact remains that initially respondent was declared to be
medically fit despite having undergone surgery as referred to above but since
he could not be sent on training immediately, he was subjected to fresh medical
examination whereupon only on account of the above surgery it was opined
that he was unfit. Thus, there exist two different opinions of the Army Medical
Board on record.
8. It is in the above situation that the writ court has directed for reviewing
the decision by reconstituting a Medical Board.
9. In the facts and circumstances of the case, such a review by the Army
Medical Board itself is not without justification. Accordingly, we find no merit
in the appeal and the same is dismissed.
(PUNEET GUPTA) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU
23.12.2021
Sunita.
