Punjab-Haryana High Court

A 4500974A Ex Rect (Ds) Gourav vs Union Of India And Others on 2 August, 2024

Author: Karamjit Singh

Bench: Karamjit Singh

                     CWP-17310-2024 (O&M)                                               1




                                   IN THE HIGH COURT OF PUNJAB AND HARYANA
                                                 AT CHANDIGARH

                                                                 CWP-17310-2024 (O&M)
                                                                 Reserved on 29.07.2024
                                                                 Pronounced on: 02.08.2024

                     A-4500974A EX-RECT (DS) GOURAV                            ...Petitioner

                                                          Versus

                     UNION OF INDIA AND OTHERS                                ...Respondents



                     CORAM: HON'BLE MR. JUSTICE SUDHIR SINGH
                            HON'BLE MR. JUSTICE KARAMJIT SINGH

                     Present:-         Mr. Gurpreet Singh, Advocate and
                                       Mr. Jaskaran Singh, Advocate for petitioner.

                                       Mr. Rohit Verma, Sr. Panel Counsel
                                       for the respondents-UOI.

                     SUDHIR SINGH, J.

The petitioner has sought a writ in the nature of

Certiorari quashing the impugned order dated 25.04.2024 (Annexure

P-12) passed by the Armed Forces Tribunal, Regional Bench,

Chandigarh at Chandimandir, whereby the Original Application filed

by the petitioner, has been dismissed.

2. The facts, in brief, are that the petitioner had applied for

recruitment of Agniveer under the Agnipath Scheme. The physical

test was conducted on 29.10.2022 and the Recruiting Medical Officer

declared him fit. The petitioner after having cleared all other

formalities, was directed to report for training on 22.02.2023. Soon

authenticity of this order/judgment.

thereafter, he was subjected to medical examination, whereupon the

Inspecting Medical Officer, had noticed a large scar on the anterior

aspect of his left leg. The petitioner was referred to Military Hospital,

Gopalpur, for expert opinion, where he was admitted on 27.02.2023,

wherefrom he was referred to Command Hospital, Kolkata. The

Surgical Specialist vide his opinion dated 04.03.2023 had opined that

the scar being hypertrophic in nature, may break down during hard

training and in hot and humid climate. Based on the said opinion, the

petitioner was invalided from service on 16.05.2023, after putting him

through an Invalidment Medical Board.

3. The stand of the official respondents before the learned

AFT was that according to the Policy dated 03.04.2017, regulating

medical examination of recruits, a recruit has to be examined on

joining the training centre and that the said policy does not violate

Regulation 135(d) of the Regulations for the Army (Revised Edition),

1987 (for short `the Regulations') and that the opinion dated

04.03.2023 given by a Classified Specialist (Surgery) and

Reconstructive Surgeon, will prevail over the opinion of the

Recruiting Medical Officer.

4. After hearing the rival contentions of the parties, the

learned AFT has found that the Recruitment Medical Officer could

not be expected to inspect the applicant with closed eye and the

petitioner was referred to the Classified Surgical Specialties, who

gave his opinion dated 04.03.2024 and it could not be shown by the

petitioner that the said opinion was perverse. Thus, the learned AFT

did not find any merit in the stand of the petitioner that a differing

authenticity of this order/judgment.

medical opinion cannot be made the basis for invaliding the petitioner

from service.

5. As regards compensation under the Agnipath Scheme,

the learned AFT has noticed the criteria as contained in Clause 8 of

the said scheme and concluded that the said criteria is not applicable

to a recruit invalided from service. It was further found that

compensation is due only to a permanent Low Medical Category, who

is not enrolled in the regular cadre due to the same. Accordingly, the

OA was dismissed.

6. Learned counsel for the petitioner has vehemently argued

that at the time of recruitment, besides having passed the rigorous

physical test, the petitioner was found medically fit and was declared

as such by the Recruitment Medical Officer. It is further argued that

the scar found on the left leg of the petitioner is not a disability as it

does not affect the normal working of a soldier and further, it does not

affect any bone of the body. While referring to the Primary Medical

Examination Report dated 31.10.2022, it is submitted that the said

report had declared the petitioner as medically fit and the same is

signed by MO 2016 Field Hospital; Medical Officer ARO and AK

ATRE COL SRMO, HQ, RTG, Zone. It is further argued that as per

Policy dated 03.04.2017 issued by the IHQ of Ministry of Defence

(Army), the opinion of the Recruiting Medical Officer is valid for a

period of 180 days and, thus, the medical examination of the

petitioner after reporting to the training centre, was totally illegal. In

this regard reference has been made to Regulation 135(d) of

Regulations.

authenticity of this order/judgment.

7. It is further argued that the petitioner has been invalided

out of service within three months of the training, but as per the

provisions of the Agnipath Policy, once the petitioner had entered the

service of army as Agniveer and that too after having been declared

medically fit by the Recruitment Medical Officer, he is entitled to the

monetary compensation in terms of Clause 29(c) of the Agnipath

Scheme.

8. On the other hand, Mr. Rohit Verma, Sr. Panel Counsel,

who is present in Court, on service of the advance notice on behalf of

respondents Nos. 1 to 5, while defending the order passed by the

learned AFT, submits that as the petitioner was not found medically

fit, no right has accrued to him either to seek continuation in the

armed forces as Agniveer or claim any compensation under the

Agnipath Scheme on account of his being invalided from the service.

9. We have heard learned counsel for the petitioner and

have also gone through the writ petition, including the impugned

order. In our opinion the following questions arise for determination.

1. Whether the clinical assessment/opinion given by the Classified Specialist (Surgery) and Reconstructive Surgeon, Command Hospital (Eastern Command), Kolkata, can be overlooked/ignored?

2. Whether the petitioner is entitled to the compensation/monetary benefits in terms of the Agnipath Scheme?

10. Coming to Question No.1, as is apparent from the facts

of the case, the petitioner after having been selected, reported for the

military training on 22.02.2023. However, on 27.02.2023, the

petitioner was admitted to the Military Hospital Gopalpur for

authenticity of this order/judgment.

provisional diagnosis/hypertrophic Scar (Left) Leg and further

transferred to Command Hospital (Eastern Command), Kolkata on

28.02.2023 for opinion by Reconstructive Surgeon. On 04.03.2023,

Lieutenant Colonel Vinay Pal Singh, Classified Specialist (Surgery)

and Reconstructive Surgeon gave the opinion that the petitioner has a

large unstable scar over anterior aspect of his left leg which might

break down due to friction during the rigorous physical activities

imparted at any army training centre. It was further opined that the

posting in hot and humid areas and extremely cold climates can cause

discomfort to the individual and breakdown of the scar. The said clinical

assessment and recommendation dated 04.03.2023 would read as under:-

"Part-II CLINICAL ASSESSMENT

1. History: This 20 year old Agniveer was found to have a large scare over anterior aspect of left leg during initial medical examination at ATR/AAD centre. On enquiring, he revealed that he sustained injury to left leg 5 years back, when he hit a corner of a wall accidentally and resulting wound was managed conservatively. He was referred for surgical opinion of this scar at MH-Gopalpur, from where he has been transferred to CH (EG) for further evaluation and opinion of Reconstructive Surgeon.

2. Physical Examination and Findings: GC - Stable, vitals - WNL Local examination (Left leg) 15x 5 cm sized scar seen over anterior aspect of middle and lower third leg, which has heated by secondary intention. Overlying skin is firmly stuck over anterior border of tibia and is immobile. Scar is hypopigmented, thinned out and stretched at the centre and hypertrophic at periphery. No local erythema, raw areas or discharging sinuses seen. There is no local tenderness and ROM at knew and ankle joint is full and free. No distel NV deficit.

3. Investigation Reports: X-ray Left leg (4279 dt. 04.03.2023, CH (EC) : soft tissue irregularity noted at lower and mid third

authenticity of this order/judgment.

leg. Mild cortical irregularity with linear sclerosis also noted at upper part of tibia in its medical aspect.

4. Diagnosis: HYPERTROPHIC SCAR OVER ANTERIOR ASPECT OF LEFT LEG.

Part-III RECOMMENDATION

1. Medical Classification Recommended: This recruit has a large unstable scar over anterior aspect of left leg, which might break down due to friction during the rigorous physical activities imparted at any army training centre. Also posting in hot and humid areas and extremely cold climates can cause discomfort to the individual and breakdown of scar. In such instances, he will not be able to carry out all military duties expected out of a soldier. Hence, recommended to be invalided out of service in LMC A5."

11. Thereafter, the petitioner on 29.03.2023 was brought

before the duly constituted Invalidment Medical Board (IMB) at

Military Hospital, Gopalpur to assess the cause, nature and degree of

disablement and after having been physically examined, the

Invaliding Medical Board opined that the disability 'Hypertrophic

Scar Over Anterior Aspect of Left Leg' suffered by the petitioner was

neither attributable to nor aggravated by the military service as

disability occurred prior to the recruitment. Accordingly, on

16.05.2023, the petitioner was struck off strength from the Army.

12. The aforesaid chronological order of the facts would

show that the petitioner was put through a proper procedure in order

to assess the disability suffered by him. It is the admitted case of the

petitioner that he was having a scar on his left leg prior to his

recruitment as Agniveer. It has been noticed in the Clinical

Assessment dated 04.03.2023 that the petitioner had revealed that he

authenticity of this order/judgment.

had sustained injury to left leg five years back, when he hit a corner of

a wall accidentally and resulting wound was managed conservatively.

The Primary Medical Examination Report dated 31.10.2023

conducted at the time of the recruitment of the petitioner, is not the

final report and it has been so admitted by the counsel for the

petitioner as well. As noticed above, the said report was only primary

medical examination report and once the petitioner had reported for

the military duties, the petitioner was admitted in Medical Hospital,

Gopalpur for provisional diagnosis/hypertrophic Scar (Left) Leg and

thereafter, referred to Command Hospital (Eastern Command),

Kolkata, when the opinion dated 04.03.2023 was given by the

Classified Specialist (Surgery) and Reconstructive Surgeon.

13. We are of the considered opinion that the clinical report

dated 04.03.2023 cannot be said to be untenable, especially when an

Armed Forces personnel is to be assessed for his medical fitness by

the authorities, in order to ensure that he could perform his regular

duties without any hindrance. The learned AFT has examined in detail

the provisions of Regulation 135 of the Regulations and paragraphs 6

and 7 of the Policy dated 03.04.2017 and has rightly come to the

conclusion that medical examination to determine fitness is not

required to be conducted after joining the training centre, but such

medical examination per-se is not barred. Still further, it was held that

on having reported to the training centre, the recruit is to be inspected

by a Medical Officer and that the Regimental Medical Officer could

not be expected to inspect the applicant with closed eyes. The relevant

authenticity of this order/judgment.

extract from the order passed by the learned AFT, would read as

under:-

"6. Regulation 135 of the Regulations is reproduced as under:-

"135. Medical Examination of Recruits.- (a) All recruits will prior to enrolment or engagement, subjected to a medical examination in the prescribed manner, (b) Medical examination of all recruits for enrolment by ROs will be carried out by Recruiting Medical Officers or at the nearest Military Hospital Medical examination of recruits for enrolment at unit HQ will be carried out at the Military Hospital located in the same station. (c) Whenever a Recruiting Medical Officer is in doubt as to the nature of a disability, he may refer the recruit to a Specialist for examination and opinion as to his suitability for enrolment in the Army. This will be done only when the recruit is fit in all other respects, and a reasonable doubt exists regarding the disability or disabilities in question. A recruit, who is referred to a Specialist for medical examination and opinion as mentioned above, will be provided where necessary, conveyance by rail on warrant to the nearest Military Hospital where the Specialist is available, and back to the place of recruitment. (d) The Medical re-examination (immediately) on arrival at his unit of a recruit enrolled by a RO and passed fit by a Recruiting Medical Officer is not permissible. Only in exceptional cases, where the medical officer in charge of the case considers it unlikely that a recruit will make an efficient soldier, will he be medically boarded before undergoing training. (e) When a recruit breaks down while undergoing training or is to be suffering from a disability likely to prevent him becoming an efficient soldier he will be medically boarded, and, if found unfit discharged under Army (Rule 13(3) item IV, 136. Determination of Age on Enrolment- (A).

7. A perusal of the said Regulation shows that medical examination of a recruit is to be carried out by the Recruiting Medical Officer and in his absence at the nearest Military Hospital. If a doubt exists in his mind regarding a disability, the Medical Officer may refer the recruit for specialist opinion. Medical examination is not permissible on arrival at the Training

authenticity of this order/judgment.

Centre, post recruitment and in case it is discovered at a later stage that the recruit is unlikely to become an efficient soldier, he may be boarded out. This means that medical examination for determining fitness will not be conducted after joining the Training Centre, but medical examination per se is not barred.

8. Paragraphs 6 and 7 of the policy dated 03.04.2017 governing recruit medical examination are also re-produced below:-

Validity Period of Medical Examination

6. The validity period of medical examination for all cases will be 180 days from the date of the initial medical exam conducted by Rtg MO. At time of dispatch, Rtg. MO will identify candidates by identification marks recorded in AFMSF-2A, and carry out medical inspection to rule out any fresh disease or injury following the initial medical examination. If a fresh disability is directed the candidate will be disposed off as described in pars 5 above.

(a) Re-Medical Examination. After lapse of the validity period, re-medical examination is mandatory and such a medical examination for all purposes constitutes a fresh med exam and will be added accordingly. These cases will be examined by Rtg MO in consultation with SRMO and disposed off as described in para 5 above. 'FIT' candidates will be dispatched to the Trg Centre and others candidates will be referred to Specialist at affiliated MH.

(b) In such medical examination after validity period, if the SRMO finds that the candidate had been declared fit by specialist at MH in the initial med examination and the disability has not further deteriorated the RMO will not refer the candidate again to MH for the same disability. However, if the disability has deteriorated or a fresh disability is detected the case will be referred again for Spl opinion.

(c) The validity period of 180 days will not be extended under any circumstances.

Medical Examination at Regtl Trg Centre

7. On joining the Regtl Trg Centre there shall be no medical examination for fitness within the validity period as they have already been declared fit. However, all Rects should be inspected by Rtg MO from health point of view to rule out any infections disease or injury so that they can be quarantined and treated if so needed.

authenticity of this order/judgment.

8. A perusal of the aforementioned paragraphs makes it clear that medical examination conducted by the Recruiting Medical Officer is valid for 180 days and re-medical examination is mandatory after the lapse of the said period. However, on reporting to the Training Centre, recruit shall be inspected by a Medical Officer. Recruits need to be inspected by Regimental Medical Officer from health point of view to rule out any infectious disease or injury so that they can be quarantined and treated if so needed.

9. Thus, it is evident that on joining the Training centre, every recruit has to be physically inspected by a Medical Officer to rule out any injury or suspected disease. Accordingly, it cannot be said that the medical examination of the applicant after reporting for training was illegal. The said requirement does not violate Regulation 135 referred to hereinabove as the medical in question is not for determining fitness for recruitment. Submission of learned counsel for the applicant in this regard is rejected.

10. The Regimental Medical Officer could not be expected to inspect the applicant with closed eyes. He suspected the scar to be hypertrophic in nature and thus, referred the applicant to a Classified Surgical Specialist, who has given his opinion dated 04.03.2023 and there is nothing on record to suggest that the said opinion is perverse. Surgical Specialist's opinion has to be respected unless it is shown to be suspect on the basis of attending circumstances. No such circumstances have been pointed out and in fact none exist. Thus, the argument that a differing medical opinion cannot be made the basis of invaliding the applicant from service, is also rejected."

14. Thus, we are of the considered view that as the scar on

the left leg of the petitioner was existing prior to his enrollment as

Agniveer, it was rightly found by the Invalidment Medical Board that

the disability suffered by him was neither attributable to nor

aggravated by the military service and accordingly, his discharge

cannot be found fault with in view of the clinical assessment report

given by the Classified Specialist (Surgery) and Reconstructive

Surgeon. Accordingly, while answering Question No.1, it is held that

authenticity of this order/judgment.

the opinion given by the Classified Specialist (Surgery) and

Reconstructive Surgeon, cannot be overlooked or ignored.

15. Coming to Question No.2. In order to determine as to

whether the petitioner is entitled to any compensation under the

Agnipath Scheme, it is to be examined whether the petitioner falls in

any of the categories stipulated under Clause 29 of the Agnipath

Scheme.

"29. Payment of Disability/Death.

The said Clause reads as under:-

                     Sl.           Category                     Entitlements of Agniveers
                     No.
                     (a)           Death during engagement (i) Insurance Cover of Rs 48 lakhs.

period on Bonafides duty (ii) One-time ex-gratia Rs 44 Lakhs (Category 'Y'/'Z') (iii) Full pay for unserved period upto four years (with effect from date of death) including Seva Nidhi component.

(iv) Balance accumulated (as on date) in the individual's Seva Nidhi fund and Govt contribution including interest from the Agniveer Corpus Fund.

(b) Death during engagement (i) Insurance Cover of Rs 48 lakhs.

period not on duty (ii) Balance accumulated (as on date) in the (Category 'X') individual's Seva Nidhi fund and Govt contribution including interest from the Agniveer Corpus Fund.

(c) Disability (i) One-time ex-gratia Rs 44/25/15 lakhs based on (attributed/aggravated due % of disability (100/75/50) from public fund. to conditions of (ii) Full pay for unserved period up to four years engagement) (with effect from date of disability) including Seva Nidhi component (from Public Fund).

(iii) Balance accumulated (as on date) in the individual's Seva Nidhi fund including interest and Govt contribution from the Agniveer Corpus fund.

authenticity of this order/judgment.

16. Admittedly within a week of his having reported for the

training, the petitioner was diagnosis with Hypertrophic Scar (Left)

Leg and after having been put through rigorous medical examination,

he was recommended for being invalided out of service. The

Invalidment Medical Board had assessed the disability suffered by the

petitioner and found the same not attributable to or aggravated by the

military service. Since the disability suffered by the petitioner is

neither attributable to nor aggravated by the military service as the

scar which led to the disability, was existing prior to the enrollment of

the petitioner as Agniveer, it cannot be said the petitioner is entitled to