Mohd. Idrees vs Union Of India And Others
2022 Latest Caselaw 856 j&K

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                    WP(C) No. 799/2021
                                                     CM No. 3444/2021
                                                     CM No. 3991/2021

                                          Pronounced on : 27.05 .2022

Mohd. Idrees                                             .... Petitioner (s)

                       Through:-   Mr. Amit Kumar, Advocate.

                 V/s

Union of India and others                              .....Respondent(s)

                       Through:-   Mr. Vishal Sharma, A.S.G.I. with
                                   Mr. Sumant Sudan, Advocate.
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                             JUDGMENT

01. The petitioner participated in the open rally for the post of

Solider (General Duty) conducted by the Army Recruitment Office,

Jammu at Jorawar Stadium, Sunjwan Military Station, Jammu from

10.02.2021 to 10.03.2021 for the Districts Doda, Kishtwar, Kathua,

Jammu, Poonch, Rajouri, Ramban, Reasi, Samba and Udhampur.

02. The petitioner was screened for Soldier (General Duty) held in

Jammu on 18.02.2021 at rally site. The medical of the petitioner was

conducted by the Army doctor and the petitioner was declared unfit on

account of disabilities of Flat Feet: Bilateral, TMJ Subluxation, Active

Discharge Ear TM Not Seen: Left, Varicose Veins RT Leg and Deviated

Nasal Septum.

03. The petitioner was explained about his disability and advised to

report at Command Hospital Northern Command, for specialist medical

review. The petitioner approached Command Hospital Northern

Command, for review and he was found fit for Deviated Nasal Septum,

Flat Feet: Bilateral, Active Discharge Ear TM Not Seen: Left and TMJ

Subluxation and unfit for Varicose Veins RT Leg by the concerned

specialists.

04. The petitioner is aggrieved of his being declared unfit for Varicose

Veins RT Leg. It is submitted by the petitioner that the respondents have

deliberately declare the petitioner as medically unfit for Varicose Veins

RT Leg. Petitioner submits that he had approached Super Specialty

Hospital, Jammu and the concerned doctor, who was specialist MS

surgery holding the qualification and examined the petitioner and certified

that he is not suffering from Varicose Veins RT Leg and the same was

found to be free from the same. The petitioner was also advised to get

further test done and after the test, the opinion of the doctor was that the

petitioner was normal and there is no Varicose Veins RT Leg.

05. The petitioner is, thus, aggrieved of the decision declaring him

unfit for the post of Soldier (GD) on account of Varicose Veins RT Leg

as the same is arbitrary, illegal and without application of mind. It is

submitted by him that that he was never examined in Military Hospital,

Udhampur by any specialist doctor and has been declared medically unfit

without any medical examination. The impugned decision of the official

respondents declaring him as unfit is, thus, bad and is required to be set

aside.

06. Mr. Vishal Sharma, learned ASGI submits that the petitioner was

found medically unfit and he was advised to seek review of the same. The

petitioner while subjecting himself for review examination has accepted

the condition that the opinion expressed by the Specialists of the Military

Hospital, Udhampur is final. The petitioner thereafter appeared for the

review medical examination and he was examined by all the specialists in

the field. After examination, he was declared fit by all the disabilities

except for Varicose Veins RT Leg and his candidature for the post of

constable (General Duty) was rejected.

07. Heard learned counsel for the parties.

08. The recruitment rally for the army conducted by the Army

Recruiting Officer and the candidates, who fulfill the eligibility criteria

are invited the same. The candidates have to undergo medical examination

initially by a team of the Army Recruiting officer under the supervision of

Senior Recruiting Officer. The criteria of fitness for a candidate applying

for the post of Soldier in the army and that of the civilian is different. The

duties of the Armed Forces are required them to serve on rough terrain

and climatic conditions under highly stressful conditions, extreme

temperatures, defending the country against external crisis. In aid to the

civil authority in case of natural or man-made calamity, therefore, Army

Personnel are required to be physically, mentally and emotionally fit to

withstand the rigours of the tough life in the Armed Forces. Medical

standards are designed accordingly to ensure selection of the right

candidates. The opinion of the medical specialists in terms of the letter of

Integrated Headquarters of Ministry of Defence (Army) Directorate

General of Medical Services (Army) DGMS - 5A Letter NO.

76054/DGMS-5A dated 30.11.2017 along with Special Army Order

6/S/2005/Rtg is considered finally and no medical review is permitted.

The examination of all the candidates for all the Recruitment rally held

across the Country is one and uniform is adopted, therefore, do separate

yardstick can be adopted for the petitioner.

09. The Army authorities are the best judge of the requirement for

their services and their opinion regarding fitness of the candidate is final.

The petitioner has neither been able to point out any irregularity in the

Medical Examination nor is there any allegation of mala fide or bias made

against the medical experts who have examined him during the

recruitment process and at the time of Review Medical Examination.

10. The petitioner has sought the opinion from the civil doctor and the

same cannot be considered in view of the fact that they are not able to

show the standard of the medical fitness required for recruitment in the

army. This apart, in Para No. 14 of the petition, the petitioner has made

the allegation that he has never been examined by any specialist doctor

and has been declared medically unfit without any medical examination.

This allegation is not true in view of the fact that the respondents have

annexed both the certificates of medical examination which have been

duly signed by the petitioner and that of the review medical examination

also. Thus, the finding of the Civil Hospital that he is medically fit is not

sufficient to enroll him in the force.

11. In Jonu Tiwari versus Union of India & ors. WP(C) No.

4456/2020 decided on 06.08.2020 considering a similar issue, the High

Court of Delhi has held as under:-

16. We have in Priti Yadav supra, in judgment dated 27th July, 2020 in W.P.(C) No.4558/2020 titled Sharvan Kumar Rai Vs. Union of India, in Nishant Kumar supra and in judgment dated 22nd May, 2020 in W.P.(C) No.3237/2020 titled Dhiraj Milind

Dhurve Vs. Union Public Service Commission, inter alia held that:-

.....(i) fitness for serving requisite duties in the Air Force is a matter of opinion and if in the opinion of the authorities constituted under the Rules of the Air Force the petitioner is unfit, a report of a medical practitioner of another organization which does not intend to recruit the petitioner and which will not be affected by the medical unfitness of the petitioner, cannot be the basis for interfering with the assessment by the specialist of the Air Force; (ii) it cannot be lost sight of that just as in justice delivery system, appeal provisions are provided to eliminate the possibility of human error, so has the appeal remedy been made available in the matter of medical examination at the time of recruitment in Air Force and just like the decision making before the Courts cannot be indefinite, so can the decision making with respect to medical fitness in the Air Force, be not indefinite; (iii) there has to be a finality in decision making, as is there in the justice delivery system; (iv) it cannot be lost sight of, that no mala fides are attributed with respect to any of the medical examinations or with respect to the team of medical professionals conducting the medical examination; (v) it is the medical practitioners of the Defence Services who have themselves undergone the rigours of the training and discharge the functions of the organization, who are best suited to form an opinion as to the medical fitness of the candidates to be recruited and once they have so formed their opinion, there can be no interference therewith, at the mere asking of a rejected/disgruntled candidate; and, (vi) candidates found medically unfit cannot seek a change of the terms subject to which they have taken the examination and which terms uniformly apply to all candidates; only a few of all those found medically unfit, who approach the Court, cannot be permitted another round of medical test.

12. This apart, the petitioner has participated in the rally knowing

fully well that he will be subjected to the standard of the examination by

the doctor of the Armed Forces and after examination by the exerts on

being declared unfit, he cannot turn around and challenge the standard of

examination followed by the experts in the field.

13. In view of the aforesaid discussions, this petition is without any

merit and is, accordingly, dismissed along with connected application(s).

(Sindhu Sharma) Judge JAMMU 27 .05.2022 Ram murti

Whether the judgment is speaking : Yes Whether the judgment is reportable : Yes