M. Balasubramani v. The Commandant, OIC Records, AD Arty Records, ADGM Centre, Nasic Road Camp, Maharashtra – 422 102

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :19.1.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.25002 of 2003andWPMP.No.30751 of 2003 and25600 of 2004M.Balasubramani.. Petitioner-vs-1. The Commandant, OIC Records, AD Arty Records, ADGM Centre, Nasic Road Camp, Maharashtra – 422 102.2. The Officer Commanding, RR & D Bty/ADGM Centre, Nasik Road Camp, Maharashtra – 422 102.3. The Recruiting Officer, Branch Recruiting Office (Army) Contonment Line, Tiruchirappalli. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamuscalling for the records relating to Order dated 18.11.1999 inRef.No.323801/RR & DB/A passed by the second respondent, the orderspassed by the first respondent dated 25.2.2000 in Ref.No.AD/15770231M/Disch (R&D)/119/Med/99/24/NE, dated 15.6.2001 inRef.No.AD/15770231M/Disch (R&D)/119/Med/99/32/NE, dated 23.1.2002 inRef.No.ad/15770231M/Disch(R&D)/119/Med/99/NE, dated 23.1.2002 inRef.No.AD/15770231M/Disch (R&D)/119/Med/99/ NE, dated 13.7.2002 inref No.AD/1577031/M.Disch(R&D)/119/Med/99/NE dated 5.6.2003 in refNo. AD/15770231 M/Disch (R&D)119 Med/99 NE and quash the same anddirect the first and second respondents to reinstate the petitionerin service as a Soldier (Clerk) with all consequential benefits.For petitioner: Mr.P.V.S.Giridhar For respondents: Mr.T.Chandrasekaran***** https://hcservices.ecourts.gov.in/hcservices/ O R D E RHeard both sides.2. The writ petition is filed challenging the order of the 2ndrespondent dated 18.11.1999 as well as the 1st respondent's ordersdated 25.02.2000, 15.06.2000, 23.01.2002, 13.07.2002, 05.06.2003 andfor a consequential direction to reinstate the petitioner in serviceas Soldier (clerk) with all consequential benefits. 3. The writ petition was admitted on 08.09.2003 and in theapplication for interim direction to pay certain amounts due to thepetitioner only notice was ordered. A counter affidavit dated16.07.2004 was filed by the respondents. 4. Subsequently the petitioner filed W.P.M.P.No.25600 of 2004seeking for a direction to the respondents to constitute a MedicalBoard to seek a fresh opinion. This Court, by an order dated18.01.2005 directed the petitioner's case to be referred to a MedicalBoard to get a fresh opinion regarding his fitness. Pursuant to thedirection, petitioner's case was referred to the opinion of theMedical Board. 5. The Medical Board, found that he was unfit for Army Servicedue to Hyperhidrosis Pitted Keratolysis. After the said report wassubmitted to this Court, the petitioner filed an objection statementdated 01.082005,. He also enclosed a medical certificate from aGovernment Doctor, Perunthurai dated 18.07.2005, which reads asfollows:-"This is to certify, that Mr.M.Balasubbramani, aged 29years has got scars due to old warts over left wristand Hyperhidrosis and pitted Keratolysis.They are unrelated to each other.Pitted Keratolysis is a simple skin disease whichoccurs over soles and which could be easily controlledby ointments like vaseline.Hyperhidrosis is an entity, which every body could getin new environments and it is not a separate disease.S/d Dr.K.M.Sankaravadivelu,M.D., D.V.,Professor and Head. Dept. of Skin and Std. Perundurai Medical College and Hospital, Perundurai. 6. By the impugned order dated 18.11.1999 the petitioner wasinformed by the 1st respondent, which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "You have been invalided out of service bymedical board wef 18 Nov., 1999 (FN/AN) beingmedically unfit. Credit balance, if any will beremitted by AD Arty, Records, Nasik Road Camp as andwhen the accounts are finalised".7. Further when the petitioner sent a representation forreconsidering their decision, the 1st respondent by an order dated25.02.2000, informed the petitioner, which is as follows:- "You have been enrolled on 05 Jul 99 andinvalided out from service on 19 Nov 99. As youhave been declared unfit for Army Service byInvaliding Medical Board, you cannot be reinstated.2. Your disability has existed before enrolmentand could not be detected. Hence your enrolment hasbeen declared as fraudulent enrolment. Period youserved in the Army is required to be regularised byGovt of India and it takes considerable time.However, necessary action for final settlement ofyour acct is being taken and you will be intimatedas and when accts are finally settled".8. When the petitioner made yet another representation dated03.05.2001, he was informed by the respondents by a reply dated15.06.2001, which reads as follows:-"Your case has been forwarded to PAO(OR)Artillery, Lekhanagar Nasik-9 for finalisation.PAO(OR) Artillery has objected that the disabilityfor which you have been invalided out from servicewas existed before your enrolment as indicated byMedical authority on page No.3 of the InvalidingMedical Board. The disability could not have beendetected by the President of Medical Officer at thetime of your enrolment. Hence your case has beendeemed as fraudulent enrolment and required to beregularised under the order of Govdernment ofIndia. The case for regularisation of infructuousexpenditure incurred from the date of yourenrolment to date of discharge/invalided out fromservice is being initiated by AD Arty Centre, NasikRoad Camp, and this will take considerable time forfinalisation".9. Thereafter the petitioner sent further representation dated12.06.2002, which was rejected by an order dated 13.07.2002. Hisfinal representation dated 26.04.2003 was again rejected by an orderdated 05.06.2003. The petitioner was corresponding for over 4 years https://hcservices.ecourts.gov.in/hcservices/ on the very same issue. The learned counsel for the petitionersubmitted that the action of the respondents was arbitrary and thelatest medical certificate produced from a Civilian Doctor shows thatthe ailment will not disqualify him from continuing in therespondent's service. 10. In response to the said contention, the respondents haveaverred in paragraph 6 of the counter affidavit, which is as follows:-"It is submitted that they are notsuperficial skin lesions as claimed by him inparagraphs 6 and 7. It is a recurrent lesion andmay recur at any time, which may lead todissemination and involvement of other parts ofthe body also. As explained above persons withsuch diseases are a threat to own life as well asother's life through inept handling of arms andammunitions. It is further submitted that thedecision given by the competent authority toinvalid petitioner' is treated as final.Assessment of disablement and acceptance ofattributability/aggravation in cases ofdisabilities other than injuries are medicalissues. Views on such medical issues shall begiven by the competent authority. No comments canbe offered for his approaching to Doctor in CivilHospitals after his invalidment from service".11. In the light of the defence taken by the respondents, thelearned counsel for the respondents also submitted that a judicialreview over such matters are clearly impermissible. In this context,the learned counsel referred to an unreported Judgement of theDivision Bench in the case of R.Paramasivam vs. Union and India inW.A.NO.3143 of 2004 dated 27.06.2005, where in identicalcircumstances this Court refused to judicially review the order ofthe Government rejecting the claim for disability pension. 12. In the aforesaid case in paragraphs 3 and 4, the DivisionBench had observed as follows:-"3. This Court cannot sit as a Court of appealover administrative decisions. The scope ofjudicial review of administrative decisions is verylimited. It is true that while prior to 1947 theCourts would not undertake judicial review ofadministrative decisions, but after the historicaldecision of the House ofLords in the Wednesburycase (Associated Provincial Picture Houses Ltd.,vs. Wednesbury Corporation, (1947) 2 All.L.R.680) the law was slightly changes and it washeld that there can be judicial review ofadministrative decisions but that can only be done https://hcservices.ecourts.gov.in/hcservices/ only on certain very limited grounds, vide State ofN.C.T. of Delhi vs.Sanjeev, AIR 2005 SC 2080. TheCourt cannot ordinarily sit in appeal over thedecision of the administrator, but can only lookinto the manner of reaching the said decision. Inthe present case, we cannot question the decisionof the Medical Board and we cannot sit in appealover the same.4. Our view get support from the decision ofthe Supreme Court in Union of India vs. BaljitSingh, (1996) 11 SCC 315 = 1997 (1) SLR 98 and thedecision of the Punjab and Haryana High Court inGurdip Singh (retd.) Subedar (Rony Lt) vs. Union ofIndia, 1997 (5) SLR 341.".13. The petitioner by virtue of the interim direction also hadthe benefit of a further review by the Medial Board and a freshopinion was also obtained. That opinion had gone against thepetitioner's contention. `14. However, the learned counsel for the petitioner Section 47 ofthe Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act (1 of 1995) (for short DisabilityAct) and contended that the respondents cannot discharge thepetitioner on account of the disability acquired by him since thesaid Act prohibits an employer from doing so. Further by placingreliance upon the Judgement of the Supeme Court in Bhagwan Dass andAnr. vs. Punjab State Electricity Board reported in 2008 AIR SCW 534= 2008(1) SCC 579, it was contended that he is entitled forreinstatement with all the other attendant benefits. 15. In response to this argument, in the counter affidavit, inparagraph 12, it has been averred as follows:-"..All categories of combatants of the ArmedForces are exempt from Section 47 of the Personswith Disability Act, 1995 as per notification dated28 Mar.2002. ".16. The learned counsel for the petitioner submitted that theexemption granted to the Armed Forces under the Disability Act cameinto force only in March 2002 whereas the petitioner was dischargedin November 1999 and that the exemption can only be prospective.The petitioner is entitled to get protection under Section 47 of theDisability Act. This argument cannot be accepted because theexemption granted to the Armed force is to reiterate the positionthat the Armed Forces are not covered by the Disability Act. Oncethe Disability Act does not apply to the Armed Forces, placingreliance upon the decision of the Supreme Court does not advance thecause of the petitioner. In the light of the above, both contentionsmust fail. https://hcservices.ecourts.gov.in/hcservices/

17. In view of the binding precedents cited and the limitedjudicial review available to this Court, the writ petition will haveto be necessarily dismissed. All the miscellaneous petitions areclosed. However, there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarjs/rgTo1. The Commandant, OIC Records, AD Arty Records, ADGM Centre, Nasic Road Camp, Maharashtra – 422 102.2. The Officer Commanding, RR & D Bty/ADGM Centre, Nasik Road Camp, Maharashtra – 422 102.3. The Recruiting Officer, Branch Recruiting Office (Army) Contonment Line, Tiruchirappalli. 1 cc To M/s. P.V.S.Giridhar & Sai Associates, SR.16651 cc To Mr.T.Chandrasekaran, Advocate, SR.1637W.P.No.25002 of 2003 andW.P.M.P.Nos.30751 of 2003 & 25600 of 2004KGK(CO)SRA(03/02/2009)