ORDER : In these petitions common question arises for the decision. All the petitioners were enrolled as Recruits after their medical examination conducted by the Recruit Meidcal Officer Zonal/Branch. Recruiting Office/Centres. They were found fit for appointment as Recruits. Petitioners undergone training of about 10-16 weeks; they were subjected to second medical examination. On conduct of second medical examination by Grenadiers Regimental Centre/respondents No. 3/5, they were declared unfit to be appointed as Recruits. 2. Petitioners submit that in accordance with Regulation 135, they could not be subjected to second medical check up and it has not been done in a proper manner. It is their further submission that it is only in exceptional cases, second medical check up is permissible under Regulation 135; whereas at the particular Grenadiers Regimental Centre which is one of out of three centres, general check up of the Recruits was ordered in the absence of exceptional circumstances for doing so. It is contended that re-examination was impermissible and is bad in law and cannot be used for removing them and issue discharge order. Petitioners have pressed into service particularly Para 135(a) and (d) of the Regulation framed under section 192 of Army Act. 3. Smt. I. Nair, learned counsel for respondents places reliance on two circulars issued and contends that second medical examination was resorted to for all the Recruits who reported for training at Grenadiers Regimental Centre; hence it cannot be said that any discriminatory treatment was meted out and once it has been found that petitioners are not fit to be continued as Recruits, there retention in Army may jeopardise the interest of defence service. The further points out that on being found medically unfit, it is not permissible to remuster them; and remustering is permissible after the Recruit has rendered to year's service and become medically capicitated to render the duty in that capacity. 4. Before considering the rival submissions of the parties, it is necessary to consider the ambit and scope of para 135 of the Regulation framed under section 192 of the Army Act. It is not disputed that these Regulations are having statutory force having been framed under section 192 of Army Act. They have been framed in exercise of power under section 192 and are to be treated as part of legislation. Para 35 of the Regulation reads as under :- "135. Medical Examination of Recruits. It is not disputed that these Regulations are having statutory force having been framed under section 192 of Army Act. They have been framed in exercise of power under section 192 and are to be treated as part of legislation. Para 35 of the Regulation reads 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 recruited for enrolment at unit HQ will be carried out at the Military Hospital located in the same station. (c) Whenever a Recruting 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. (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 solider, he will be medically boarded before undergoing training. (e) When a recruit breaks down while undergoing training or is found 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. 5. Counsel for the respondents has relied on a policy decision dated 6th July, 99 (Annexure P/4). This letter was issued pursuant to the meeting in the Office of Adjutant General. It is executive instructions issued pursuant to the meeting. The letter is quoted below in extenso :- Recruting Medical Procedures : ZRO Modification 1. "Changes as under, have been made in the second medical examination procedures for candidates recruited through ZROs/ BROs/UHQ quota :- (a) Candidate recruited through UHQ quota will be subjected to a second medical examination at the authorised hospital. 'Centres will liaise with the Commandants/CO's hospital for the necessary arrangements. "Changes as under, have been made in the second medical examination procedures for candidates recruited through ZROs/ BROs/UHQ quota :- (a) Candidate recruited through UHQ quota will be subjected to a second medical examination at the authorised hospital. 'Centres will liaise with the Commandants/CO's hospital for the necessary arrangements. Candidates found fit/unfit will be dealt with in accordance with the procedure so far followed for ZROs/BROs recruited candidates second medical examiantion. ZROs/BROs recruited recruits will continue to undergo a second medical examination as hither to. (b) Status of recruits found unfit at second medical examination, it has been clarified by the Rtg Dte that the personnel being subjected to the second medical examination are recruits. They will thus be treated as recruits and not judged by standards for fresh recruitment. Thus, recruits with correctible disabilities like hydrocele etc., will be referred to the authorised hospitals for treatment and retained in services in accordance with the stipulations of MT-3 letter No. A/203/4/MT-3 dated 20th Feb, 86, (photocopy attached). All concerned and in particularly Sr. Advisers in all specialities may be advised to ensure action on the subject. Present practice of declaring recruits unfit for treatable disabilities, will cease forthwith. (2) Contents of this letter may be disseminated to all concerned under your jurisdiction." 6. Letter indicates the procedure for second medical examination has to be conducted in what manner. It does not lay down that every candidate has to be subjected to second medical examination. It contains the instructions in what manner the recruit has to be treated if the second medical examination is done, the Recruit has to be treated. Correctible disabilities like hydrocele etc. will be referred to the authorised hospitals for treatment and retained in services in accordance with the stipulations of MT-3. It was also emphasised that present practice of declaring recruits unfit for treatable disabilities, will cease forthwith. Another letter which is relied on by the learned counsel for respondents is dated 25th August, 1989 which reads as under :- "Zonal Recruiting Officer Ajmer, Ambala, Bangalore, Calcutta, Danapur, Jabalpur, Jalandhar, Kunraghat, Lucknow, Madras, Pune, Shilong. Independent Recruiting Officer Delhi Cantt. All Regiment and Corps Training Centres. MEDICAL EXAMINATION OF RECRUITS. 1. A case has recently come to the notice of this Headquarters, wherein a recruit has been discharged from service due to 'Systolic (heart) Murmur". Independent Recruiting Officer Delhi Cantt. All Regiment and Corps Training Centres. MEDICAL EXAMINATION OF RECRUITS. 1. A case has recently come to the notice of this Headquarters, wherein a recruit has been discharged from service due to 'Systolic (heart) Murmur". This has led to embarrassment for the Recruiting Organisiation suggesting that medical examination at the recruitment stage is not being conducted thoroughly. 2. Systolic (heart) Murmur can justifiably be a cause of difference of opinion regarding its organic or functional origin, specially when adequate facilities for investigations do not exist locally. Recruiting Medical Officer may, however, be advised to exercise more care while examining the candidates for this disability. 3. When a previously fit candidate is declared medically unfit during a second medical examination shortly thereafter, the relevant medical opinions/documents should be expeditiously sent to DGMS-5A. Army Headquarters for further expert scrutiny and final opinion. Disposing such medical documents without any referral to higher medical authorities is not a desirable procedure. 4. In view of the above, it is requested that the procedure suggested in para 2 and 3 of the letter may be adopted at the time of medical examination of recruits." 7. The said letter also does not in any manner dilutes the regulation nor it can dilute the effect of regulation. It is nowhere mentioned in the said letter that each Recruit should be subjected to fresh medical examination. 8. It becomes clear from a bare reading of para 135 of Regulation that all Recruits have to be subjected to medical examination prior to enrolment or engagement as per clause (a) of para 135 of the Regulations. Clause (b) and (c) deals with the procedure of medical examination at the time of recruitment. Clause (d) of para 135 deals with the medical re-examination. It clearly prohibits medical re-examination; it unambiguously provides that "immediately on arrival at the unit of a Recruit enrolled by a Recruiting Officer and passed fit by a Recruiting Medical Officer is not permissible". What is laid down in mandatory terms "only in exceptional cases, where the medical officer in charge of the case considers it unlikely that a recruit will make an efficient soldier, he will be medically boarded before undergoing training." This power can be exercised before undergoing training. What is laid down in mandatory terms "only in exceptional cases, where the medical officer in charge of the case considers it unlikely that a recruit will make an efficient soldier, he will be medically boarded before undergoing training." This power can be exercised before undergoing training. Once the training is done, it appears to be prima-facie impermissible that such a re-examination can be conducted except under clause (e) of Regulation 135 it is only when a recruit breaks down while undergoing training or is found to be suffering from a disability likely to prevent him becoming an efficient solider, he will be medically boarded. This is not the case of either party. The re-examination under 135(d) is permissible only in exceptional cases and in such a case medical officer in charge of the case has to record a finding that it is unlikely that the Recruit will make an efficient soldier. It is not the case of respondents that it was so done. All the Recruits were sent outrightly for medical check up which exercise is prima-facie impermissible as per regulation 135 (d) and is without jurisdiction. This, it is held that the petitioners were wrongly subjected to re-examination that is second medical check up without recording a finding that they were unlikely to become efficient soldiers. The action violates the provision of Regulation 135(d). The petitioners were treated as if they were fresh recruits whereas once a person is recruited, his case has to be treated in accordance with para 135(d) and (e) of the Regulation. 9. The main plank of submissions of the respondents are in the form of letter and executive direction. This letter R/4 and executive instructions contained in P/4 cannot have the effect of diluting in any manner under statutory regulation 135(a) and 135(b). 10. It is settled law the statutory regulations can be supplemented by the executive instructions where there is a gap. They can be supplemented but not sup-planted. Executive instructions cannot override the regulation which have statutory force. In P. D. Aggarwal and others vs. State of U. P. and others AIR 1987 SC 1676 and in B. N. Nagarajan and others vs. State of Karnataka and others AIR 1979 SC 1676 it was so emphasized by the Supreme Court. The action of the respondents indicates that total goby has been given to the safeguards provided under the statutory regulation. The action of the respondents indicates that total goby has been given to the safeguards provided under the statutory regulation. Only in exceptional circumstances when medical officer is satisfied that Recruit is unlikely to become an efficient soldier, re-examination is permissible. The jurisdiction does not vest in the medical officer to go for general medical examination of each and every Recruit. This is totally impermissible and practice has to be stopped until and unless the regulation itself is amended. 11. However, in the instant case as the service is a defence service; security and other various important aspects are involved and though the medical re-examination was not permissible to be conducted and insinuations are made on particular regimental unit, without going into that in detail, suffice it to say that fresh examination should be conducted by special medical board constituted for the purpose. 12. Both the learned counsel for the parties suggest that a team of specialities of Director General Medical Services of the Army and All India Medical Science may be asked to medically examine the petitioners and submit the report for which the expenses will be borne by the respondents. However, the discharge order is liable to be set aside. The petitioners are directed to be reinstated. They be sent to the fresh medical examination as agreed to by the learned counsel for the parties. 13. Writ petitions are allowed. Impugned orders of discharge are quashed. Petitioners are directed to be reinstated. However, the petitioners are granted 50% of the back wages. Remaining will depend upon the ultimate outcome of the fresh medical examination to be conducted jointly by the team of three persons consisting of two specialists of AIMS as may be nominated by Director of All India Institute of Medical Science, New Delhi, and another to be provided by the Director General, Medical Services of the Army. In case, any of petitioner is found unfit on fresh medical examination to be conducted, he may represent for remustering as a special case, which may be considered by the respondents sympathetically. It is made clear that this Court has not opined on entitlement of the petitioner's to remustering as of right. Cost on parties.