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2007 DIGILAW 1180 (DEL)

ROHIT SINGH BAGHEL v. UOI

2007-05-31

S.N.AGGARWAL, T.S.THAKUR

body2007
T. S. THAKUR, J. ( 1 ) IN this petition for a writ of certiorari, the petitioner calls in question a communication dated 29th November, 2006 declaring the petitioner medically unfit for recruitment to the Indian Army. ( 2 ) THE petitioner is a graduate in Mechanical Engineering. In response to a notice published by the Union Public Service Commission, he appeared in what is described as "combined Defence Services Examination" in February, 2006 with service in the Indian Air Force as his first choice. He was declared successful and placed at Sl. No. 63 of the merit list for the Air Force and at Sl. No. 130 in the merit list for the Indian Army. He was interviewed by the 2nd Air Force selection Board, Mysore and declared successful shortly whereafter he was examined by a Medical Board at the Institute of Aero Space Medicine (IAM) (AF), vimanpura in Bangalore. The Medical Board was of the opinion that the petitioner was unfit for recruitment in the Air Force on account of what is described as "attempted Unilateral Sacralisation LV-5 on the left side". The petitioner preferred an appeal against the said decision and opted for recruitment in the Army for which purpose he was examined at the Army Base hospital at New Delh. The Base Hospital was also of the view that the petitioner suffered from "attempted Unilateral Sacralisation" and declared that he was unfit for recruitment in any one of the three wings of the armed forces. Aggrieved the petitioner has filed the present writ petition challenging the communication received by him from the Directorate General of Medical Services, air Headquarter and for a mandamus directing the respondents to permit the petitioner to join armed forces (Air Force/army) as a recruit. ( 3 ) WE have heard learned counsel for the parties and perused the record. Learned counsel for the petitioner argued on the basis of Appendix-V to the notice published by the UPSC inviting applications for recruitment that incomplete Sacralisation, Unilateral or Bilateral was a condition which rendered a candidate unfit for recruitment only in the Air Force. He urged that the said condition did not render unfit candidates for recruitment to the Indian Army. Learned counsel for the petitioner argued on the basis of Appendix-V to the notice published by the UPSC inviting applications for recruitment that incomplete Sacralisation, Unilateral or Bilateral was a condition which rendered a candidate unfit for recruitment only in the Air Force. He urged that the said condition did not render unfit candidates for recruitment to the Indian Army. The respondents have disputed that position in the Counter Affidavit and asserted that candidates with Unilateral (Incomplete) Sacralisation were unfit for recruitment even in the Indian Army as the same is considered "mal- development or impairment of function of the bones or joints" as stipulated in para 2 (b) of Appendix-B of Policy Letter No. 76054/policy/dgms-5a dated 22nd december, 2000, a copy whereof has been produced as Annexure-A1 to the Counter affidavit. Reliance is also placed upon instructions issued by the Army headquarter under No. DGAFMS/dg-3a Note No. 9450/policy/dgafms/dg-3a dated 20th january, 1995 and DGAFMS/sr. Conc (Surgery) note No. 27480/dgamfms/sc (S) dated 30th March, 1995 Annexure A2 and A3 respectively. A perusal of the later of the two communications dated 30th March, 1995 would show that the same simply recommended amendments to the manual of medical examination so as to include unilateral or incomplete bilateral Sacralisation of LV-S as a ground for declaring the candidates suffering from that condition to be unfit for recruitment to the Indian Army. Since the amendments proposed were only in the nature of recommendation to be formally incorporated in the guidelines regarding physical fitness of candidates for commission in the armed forces, we had directed the respondents to file an affidavit specifically stating whether the said amendments had been actually carried out and uniformly followed for purposes of recruitment. In compliance with the said direction, Mr. Tikku has filed an affidavit sworn by Col. A. K. Upadhyay, Director MS (PS) Office of directorate General of Medical Services (Army) AG"s Branch, Army Headquarter, new Delh. The affidavit inter alia states that the amendments proposed in letter dated 30th March, 1995 supra as also those in office Note dated 10th april, 1995 have been accepted for the Army as per Office of DGMS (Army) Note no. 76054/policy/dgms-5 (A) dated 1st December, 2000 copy whereof has also been produced with the affidavit. The affidavit inter alia states that the amendments proposed in letter dated 30th March, 1995 supra as also those in office Note dated 10th april, 1995 have been accepted for the Army as per Office of DGMS (Army) Note no. 76054/policy/dgms-5 (A) dated 1st December, 2000 copy whereof has also been produced with the affidavit. The relevant portion of the office note dated 1st december, 2000 is as under : "76054/policy/dgms- (A) 01 Dec 2000 office OF DGMS (ARMY)/dgms 5a assessment OF CANDIDATES FOR COMMISSION IN ARMED FORCES: REVISION OF PHYSICAL standards FOR 1. XXXX 2. The amendments/modifications in the physical standards suggested by Sr Conc (Med) vide their office note No. 27480/dgafms/scm dt 10 Apr 95 and Sr Conc (Surg) vide their note No 27480/dgafms/sc (S) dt 30 Mar 95 are accepted for army. 3. XXXX sd/- (N R Raha) maj Gen addl DGMS (Handps) addl DGAFMS (MR)" ( 4 ) THE affidavit further states that on the basis of the amended policy as aforementioned, no person with confirmed diagnosis of "unilateral Sacralisation of LV-5" has been declared fit and that any person who has been detected to be suffering from that disability during Pre-Commission Medical Examination has not been commissioned in the Army after the implementation of the policy dated 1st december, 2000. Para 4 of the affidavit in this regard reads: "4. That on the basis of above policy, no person with confirmed diagnosis of Unilateral Sacralisation of LV-5 has been declared fit and any person who has been detected of having this diagnosis/disability during Pre-Commission Medical examination, has not been commissioned in Army, after implementation of the policy dated 1st December, 2000. " ( 5 ) MR. Tikku, leaned counsel for the respondents has drawn our attention to Appendix-5 to the notice inviting applications issued by the UPSC for admission to the NDA published in Employment News dated 17-23 March, 2007. He has in particular referred to Clause "j" of Appendix-V which inter alia declares incomplete Sacralisation Unilateral or Bilateral as a condition rendering the candidate unfit for entry into armed forces. It was contended by him that upon amendment of the norms and guidelines for physical standards for recruitment to the armed forces and also for admission to National Defence Academy, the notices published by the UPSC have also been correspondingly corrected thereby implementing the amended policy in toto. It was contended by him that upon amendment of the norms and guidelines for physical standards for recruitment to the armed forces and also for admission to National Defence Academy, the notices published by the UPSC have also been correspondingly corrected thereby implementing the amended policy in toto. It was in that view argued by Mr. Tikku that the petitioner"s grievance that Incomplete Sacralisation was a condition that rendered the candidate unfit only for recruitment to Indian Air forces and not for the other two wings (Navy and Army) of the Force was wholly untenable. ( 6 ) THE amendments proposed by the Director General of the Armed Force medical Services introducing incomplete unilateral or bilateral Sacralisation as a condition rendering the candidates unfit for all the three forces having been accepted way back in the year 2000, the Army was like the Air Force justified in declaring the petitioner unfit for recruitment to its ranks. The condition which the petitioner suffers from was on the date he appeared in the examination and even today sufficient to declare him unfit for recruitment to all the three wings of the Armed Forces. His grievance that he was unfit only for the Air force and not for the remaining two wings is in that view wholly misplaced. ( 7 ) LEARNED counsel for the petitioner, however, argued that the Armed forces do not hold any medical examination to determine whether the candidate suffers from Sacralisation, unilateral, bilateral, attempted or otherwise. He urged that the petitioner was discovered to be a case of attempted unilateral sacralisation only because he was put to test for that disease which was prescribed as a disqualifying condition for recruitment to Air Force. In the case of other candidates who had opted for recruitment to the Army, no test radiological or otherwise was conducted to determine whether the candidates really suffered from any such disease. It was only in case the candidates were discovered to be suffering from that condition that the disqualification got attached to them. Consequently, many have escaped detection and got recruited to the Army even when they suffer from the disability. The argument is no doubt attractive on its face value but does not stand closer scrutiny. It was only in case the candidates were discovered to be suffering from that condition that the disqualification got attached to them. Consequently, many have escaped detection and got recruited to the Army even when they suffer from the disability. The argument is no doubt attractive on its face value but does not stand closer scrutiny. It is true that the petitioner was put through a test for determining whether he suffered from Sacralisation when he opted for recruitment to the Air Force but once it was noticed that he did suffer from that condition, the only question that could and did actually arise was whether the condition disqualified him for recruitment to the Army. Our answer to that question is in the affirmative. Whether or not the Army holds comprehensive radiological test for other candidates to determine their fitness by reference to Sacralisation becomes academic. The question is not whether every candidate is put through such a test and if no test are conducted, whether recruitment of candidates is proper. The question is whether a candidate who is on an examination found to be suffering from the disability on account of Sacralisation can insist that he should be recruited notwithstanding the disability. It is not disputed before us that the petitioner does suffer from the defect of bones or Sacralisation mentioned above. If that be the position, there is no room for our directing the Army to necessarily take him into service, notwithstanding the policy and the norms fixed for such recruitment to the contrary. ( 8 ) THERE is, in that view of the matter, no merit in this writ petition which fails and is hereby dismissed but in the circumstances without any order as to costs.