H. Silvester v. Union of India & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.9.2009CORAMTHE HON'BLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HON'BLE MR.JUSTICE N.KIRUBAKARANWrit Appeal No.1301 of 2008H.Silvester..AppellantVs.1. Union of India rep. by its Secretary to Government Ministry of Defence North Block, New Delhi.2. The Chief of the Army Staff Army Head Quarters New Delhi.3. Lieutenant Colonel AIR Defense Artillery Training Centre Nasik Road Camp Maharashtra...RespondentsAppeal under clause 15 of the Letters Patent against the orderof the learned single Judge dated 26.2.2008 made in W.P.No.31200 of2005, under Article 226 of the Constitution of India, writ ofCertiorarfied Mandamus calling for the records of the respondnetsespecially the third respondent relating to his proceeding made inNo.CF/15767273N/R&D/21/A dated 15.07.2005 and quash the same as nulland void, illegal and invalid and arbitrary and consequentlydirecting the respondents to provide re-employment with the same oralternative or by creating a supernumerary post on the same scale ofpay till correct medical opinion is arrived after sending forthwiththe petitioner for re-medical examination to medical board or teamof Doctors or to provide fresh Discharge Certificate asserting Ex-serviceman status with all available concessions entitled to be anEx-Serviceman besides disbursing all outstanding monetary benefitsfrom 1997 together with interest at the rate of 18% per annum apartfrom providing compensation to the time of Rs.4,00,000/-. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mr.Amal RajFor Respondents : Mr.K.Ilango Asst. Solicitor GeneralJ U D G M E N T(Delivered by S.J.MUKHOPADHAYA,J.)The appeal has been preferred against the order dated 26.2.2008passed by the learned single Judge, whereby, the writ appealpreferred by the appellant was dismissed.2. As the case can be disposed of on a short point, it is notnecessary to discuss all the facts, except the relevant one.3. The appellant (hereinafter referred to as the "petitioner")appeared for Defence Services selection during November 1997 andafter general medical test conducted at Trichy, he was recommendedfor appointment as Sepoy, after training. The petitioner was sent toNasik Camp AD Arty Training Camp for training. During training,having noticed some defects, he was sent for re-medical test. Duringre-medical test, the petitioner was found not fit for appointment bythe Medical Board as there was a minor curve in both his feet, whichwas described in the medical term as "bilateral Pes Cavus dejoinderprescut". In view of the report of the medical Board, the petitionerwas discharged from service on 17.5.1998, giving rise to the writpetition.4. The learned counsel appearing on behalf of the petitionersubmitted that the petitioner was found fit in the primary medicalexamination. He placed reliance on the primary medical examinationreport issued under the signature of Regimental MedicalOfficer/Recruiting Medical Officer, Branch Recruiting Office, Guntur,who examined the petitioner at Trichy, during his selection alongwith large number of candidates who took part in the mass selectiontest. 5. Per contra, according to the learned Assistant SolicitorGeneral appearing on behalf of the Ministry of Defence, thepetitioner, having wrongly selected though medically unfit, he wasrightly discharged from service. 6. The case was taken up much earlier, when the respondents wereallowed time to bring on record any Rule/Guideline issued by therespondents prescribing disease/physical defects to declare acandidate medically unfit during medical examination. The Manual forRecruiting Medical Officer, 1989 has been brought on record byrespondents. https://hcservices.ecourts.gov.in/hcservices/

7. We have heard the learned counsel for the parties and perusedthe records.8. It appears that the petitioner was earlier medically examinedalong with large number of candidates by Medical Officer of BranchRecruiting Office, Guntur a general physician. During the routinemedical examination, the Regimental Medical Officer (Army), Army AirDefence Centre, Nasik, found that the petitioner was havingdisability (Bilateral Pes Cavus) which does not meet the physicalstandards of an effective soldier in the army. Since there wasdifference of opinion with the Medical Officers, the case wasreferred to Senior Medical Advisor, Military Hospital, Devlali on9.1.1998 for review and opinion for his retention in the Army. Hewas admitted in the Military Hospital, Devlali and thereaftertransferred to INHS, Ashwini, Colaba, Mumbai on 12.1.1998. Theclassified specialist in surgery confirmed that the petitioner washaving disability "Bilateral Pes Cavus" deformity and hence, unfitfor Army service. The petitioner was thereafter transferred toMilitary Hospital, Devlali. 9. It appears that the petitioner was subsequently examined bythe Medical Board duly constituted at Medical Hospital, Devlali, on11.4.1998, to assess the cause, nature and degree of disablement ofthe petitioner. The Medical Board confirmed that the petitioner washaving the above disability, which existed prior to his enrolment andalso could have been detected. The Medical Board also viewed thatthe petitioner's disability "Bilateral Pes Cavus" was neitherattributable to nor aggravated by the service condition and assessedhis percentage of disablement "nil" for life. The invalidatingMedical Board recommended that the petitioner be invalidated out ofservice in medical category EEE, i.e. permanently unfit for militaryservice. Based on the recommendations of the invalidating MedicalBoard, the petitioner was invalidated out of service and was SOS(Struck Off Strength) from Army with effect from 18.5.1998 under ArmyRules 13(3)(iv) with total service of 139 days. 10. The above said fact has not been disputed by the petitionerand it has also been brought to our notice that under the Manual forRecruitment Recruiting Medical Officer - 1989, a number ofdeformities, such as Knock knee, Hammer Toe, Hallux Valgus, HalluxRigidus, etc. have been prescribed as disability to appoint a personin military service. Clause 9 of the Manual, 1989 reads as under:"Any other Congenital Abnormality.- Candidate withdeformities like Talipes, Pes-cavus (Toes are clawed andcallosities form over metatarsal heads) or contractureof planter fascia, etc. should be permanently rejected." https://hcservices.ecourts.gov.in/hcservices/

11. From the aforesaid manual and as quoted above, it will beevident that Pes-cavus has been prescribed as one of the disabilityfor appointment in the service of respondents.12. In view of the prescribed procedure and manual, thepetitioner having found medically unfit for continuing in the Armyservice, the learned single Judge has rightly disallowed the writpetition. We find no ground made out to interfere with the saidorder. Accordingly, the appeal is dismissed. However, this ordershall not stand in the way of respondents to pay remuneration for 139days, as undertaken before the learned single Judge. There shall beno order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarkpl To1. The Secretary to Government Ministry of Defence North Block, New Delhi.2. The Chief of the Army Staff Army Head Quarters New Delhi.3. Lieutenant Colonel AIR Defense Artillery Training Centre Nasik Road Camp Maharashtra.1 cc To Mr.A.Amalraj, Advocate, SR.47708.1 cc To Mr.K.Elango, Advocate, SR.47533.W.A.No.1301 of 2008. MS(CO)RVL 30.09.2009