Jammu & Kashmir High Court

Sunish Kumar vs Union Of India And Others on 27 May, 2022

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                     WP(C) No. 798/2021
                                                      CM No. 3443/2021
                                                      CM No. 3980/2021

                                            Pronounced on : 27.05.2022

Sunish Kumar                                             .... 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 medical examination of the petitioner was conducted on

05.03.2021 at the Rally site and after his medical examination, he was

declared medically unfit on account of Unhealthy Tympanic Membrane

and Surgical Scar; Right forearm. The petitioner was informed of the

disabilities and advised to report 166 Military Hospital, Jammu before

11.03.2021 for specialist medical review.

03. The petitioner appeared before 166 Military Hospital, Jammu on

23.03.2021 before the concerned ENT Specialist with regard to

examination for Unhealthy Tympanic Membrane and Surgical Scar; Right

forearm by the concerned specialist. The concerned specialist after

examining the petitioner on 23.03.2021 for Unhealthy Tympanic

Membrane, declared him unfit for the said disability. The petitioner,

however, remained absent for examination with regard to the disability of

surgical scar in the right forearm.

04. The petitioner submits that he is absolutely fit and suffers from

no such disability, he has erroneously been declared medically unfit by the

respondents. The petitioner approached Shri Maharaja Gulab Singh

Hospital, GMC on 01.04.2021 for medical examination, the concerned

specialist doctor at the hospital after examining the petitioner, opined that

no such ailment of Unhealthy Tympanic Membrane was found.

05. The contention of the petitioner is that the respondents have

arbitrarily declared him unfit for surgical scar, in the right forearm also

when no such disability was pointed out earlier when he participated in the

Army Recruitment Rally in the year of 2019. The petitioner, thus, is

aggrieved of being declared medically unfit for the post of soldier (General

Duty) when he does not suffer from these disability.

06. It is submitted that the respondents/authorities without examining

the petitioner have arbitrarily declared him unfit even when he was fit, and

qualified for recruitment as Solider (General Duty). The petitioner, thus,

seeks a writ of certiorari for quashing Letter/Certificate RMDS No. 7332

vide which he has been declared medically unfit with disabilities of

Unhealthy Tympanic Membrane RT ear and Surgical Scar; Right forearm

and further to appoint him as soldier in category of Soldier General Duty

(All Arms) for District Kathua in pursuant to the notification issued by the

respondent No. 2 for Army Recruitment Rally.

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

initially screened by two Recruiting Medical officers having sufficient

years of experience in the medical field who had diagnosed him for

disabilities Unhealthy Tympanic Membrane and Surgical Scar; Right

forearm. These disabilities were cross-examined by the by Senior

Recruiting Medical officer at Rally site, who concurred with the opinion of

the Recruiting Medical Officer.

08. The petitioner was explained about the reasons for declaring him

unfit and was advised to report 166 Military Hospital, Jammu for

specialized review. In the review medical examination by the concerned

specialized, the petitioner was declared unfit for Unhealthy Tympanic

Membrane RT ear. The usual diagnosis by the Army Medical Officer was

confirmed in the review medical examination also. The only ground on

which the petitioner seeking his selection is that the concerned specialist in

the Civil Hospital has after his examination opined that he does not suffer

from any such disability. Once the petitioner subjected himself for review,

he had accepted the condition that opinion of the concerned specialist in

review would be final.

09. Any candidate, who is diagnosed to have a medical condition

after examination at the rally site is referred to designated hospital duly

nominated by the Army authorities. The examination and review both are

conducted by experienced Army Medical Practioner, as there is difference

in the medical standard required to be followed for declaring a candidate fit

for service in the Army. The fitness of the candidates for army service is to

be considered on the basis of requisite duties that they have to perform

keeping in view the climatic conditions, rough terrain, extreme conditions

snowfall conditions while defending the country. They are required to be

physically, mentally and emotionally fit to witness and the rigorous of

tough life and medical standards are accordingly made to select the right

candidate in the Army. The report of the Civil Hospital declaring the

petitioner fit cannot be considered over the opinion of the medical

authorities of the Army since they are interfering in the assessment by the

specialist of the Armed Force. The norms of recruitment of a civil post are

different than that of an Army.

10. It is settled proposition that the medical practitioners of the

Defence Services, who have themselves undergone the rigorous of the

training and discharge the functions of the organization, who are best suited

to form an opinion with regard to the medical fitness of the candidates to be

recruited. The candidates after seeking contrary opinion from the Civil

Hospital cannot rely on the same for his requirement as it is uniformly

applied to all the candidates especially so when review of the same is by

the specialist of the field. There is no irregularity, mala fide or allegation of

biased against the medical experts, who have examined the petitioner. In

the absence of these allegations, the decision of the medical experts, who

have conducted medical examination of the candidate cannot be

questioned.

11. The petitioner may have sought opinion regarding Unhealthy

Tympanic Membrane from a Civil Hospital but in most cases, the doctor in

Civil Hospital may not be attuned to the requirement and the standard of

medical fitness required for service in the forces. The petitioner has been

examined by the expert in the field that the petitioner suffers from

Unhealthy Tympanic Membrane.

12. 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.

13. The expert having formed the opinion and being the best judge of

the requirement of candidates cannot be interfered with lightly specially

when the doctor of SMGS has certified that the petitioner is fit for army

recruitment.

14. This apart, the petitioner did not appear for review examination

regarding surgical scar in right forearm held on 24.04.2021 and, therefore,

the decision of declaring him unfit on that account remains final.

15. The petitioner has participated in the rally knowing fully that he

will be subjected to the standard of examination by the Doctors of the

Army. He now being unsuccessful cannot turn around and challenge the

standard of examination followed by the experts on the field.

16. In view of the aforesaid, there is no merit in this petition and the