Basant Raj son of Aditya Kumar vs The Union of India

Seeking exception to an order dated 8.2.2016 passed

by the learned Writ Court in C.W.J.C. No.16212 of 2015 this appeal

has been filed under Clause 10 of the Letters Patent.

Petitioner was a candidate who, after successfully

clearing the written examination, the physical test and the interview

conducted by the Union Public Service Commission to undertake a

course in the National Defence Academy was held medically unfit

for undertaking the course in the academy on account of the fact that

he was suffering from white coat hypertension. The statutory

Medical Board having found him unfit, on appeal being filed, the

Appeal Medical Board confirmed the finding of the statutory

Medical Board and challenging the same and claiming review of the

decision of the Appeal Medical Board the writ petition was filed.

The learned Writ Court found that there is no provision

for review and once the Medical Board and the Appeal Medical

Board have given concurrent finding holding the appellant unfit for

admission into the course, the learned Writ Court cannot interfere

into the matter.

While hearing the matter, this Court had directed the

counsel representing the Union of India to produce the procedure for

constitution of the Medical Board and examination of the candidate

by the Medical Board and today learned Counsel representing the

Union of India has produced the guidelines dated 3rd of June, 2008

issued by the Government in the Ministry of Defence and under

Clause 20 and 21 of the said guidelines, there is a provision for

review.

Learned counsel for the appellant argues that the

finding recorded by the learned Writ Court to say that there is no

provision for review is incorrect and the matter should be referred to

the Review Board for re-consideration. That apart, learned counsel

submits that the appellant has been examined by the doctors of the

A.I.I.M.S., New Delhi and they have also observed that the

appellant''s medical disability will not come in the way of

performing duties in the armed forces and accordingly submits that it

is a fit case where the matter should be referred back to the Review

Board for re-consideration.

However, Shri S.D. Sanjay, learned Additional

Solicitor General, invites our attention to the guidelines contained in

the memorandum dated 3rd of June, 2008 and points out that once the

Appeal Medical Board has taken a decision than the review is

permissible only subject to the President of the Appeal Medical

Board holding and recommending for constitution of a Review

Medical Board based on the merits of the case. He refers to Clause

21 contemplating the procedure for constitution of Review Medical

Board and argues that in this case the President having refused

constitution of the Review Medical Board, no indulgence can be

made by this Court exercising its limited jurisdiction in a proceeding

under Article 226 of the Constitution and if the learned Writ Court

has dismissed the writ petition on such consideration, there is no

error in the matter.

We have heard learned counsel for the parties at length

and have gone through various aspects of the matter, particularly the

guidelines contained in the communication dated 3rd of June, 2008.

Clause 21 of the aforesaid Circular reads as under:

"When a candidate is declared unfit by the Appeal Medical Board, the result would be communicated to him/her by the President of Appeal Medical Board in the prescribed form as per Appendix ''D''. He/She may simultaneously be informed that if he/she desires to challenge the findings of the Appeal Medical Board, he/she may do so within one working day. The candidate shall also be informed by the President Appeal Medical Board that holding of the review medical board will be granted at the discretion of DGAFMS, based on the merits of the case, and that Review Medical Board is not a matter of right."

From a perusal of the aforesaid, it is clear that when a

candidate is declared unfit by the Appeal Medical Board, the result

should be communicated to the candidate by the President of the

Appeal Medical Board in the prescribed form and from the counter

affidavit filed by the respondents in the writ petition, it is seen that

the decision was communicated to the petitioner by the concerned

competent authority as contemplated under the Rule vide Annexure- C. Thereafter the question of review has also been considered and in

para Nos.13 and 14 of the counter affidavit it has been found that the

prayer for Review Medical Board was not acceded to and the request

for this was rejected vide Annexure-4 filed in the writ petition. From

the aforesaid, it is clear that the prayer of the petitioner for review

Medical Board was considered under Clause 21 and the same has

been rejected. Once the competent authority has considered the

request for Review Medical Board and declined to the same, in

accordance with the requirement of Clause 21 reproduced

hereinabove, now this Court, in the absence of any mala fides,

illegality or statutory violation being pointed out, cannot sit in appeal

and direct for a Review Medical Board when the expert Appeal

Medical Board does not find any merit for referring the matter to the

Review Medical Board, as is evident from Clause 21 as reproduced

hereinabove, Review Medical Board is not a matter of right. It is the

discretion of the President of the Appeal Medical Board to hold a

Review Medical Board and once the President has exercised his

discretion in accordance with the Rules, we see no reason to make

indulgence into the matter. As far as the contention of the petitioner

that the doctors of A.I.I.M.S., New Delhi, have found the petitioner

fit for duty and, therefore, the issuance of mandamus should be

considered is concerned, we are of the considered view that this

contention is completely misconceived. Once for recruitment or

induction into a service or course in the specialized Armed Forces, a

statutory Medical Board is constituted, the entire power to consider a

person to be fit is conferred on such Medical Board and when the

Medical Board in the present case has found the petitioner unfit

based on the reports given by institutions which are not authorized

under the Statute to give such a recommendation, a Writ Court

cannot interfere into the matter and issue a mandamus. Recruitment

to the Armed Forces and various other specialized services in the

Armed Forces are governed by the rules and regulations applicable

to such establishments and the physical fitness and standard

required for working in such specialized Forces are determined by

the expert medical authorities constituted specifically for the purpose

and once these specialized medical authorities have given an expert

opinion, a Writ Court cannot sit in Appeal over the said decision and

issue any mandamus. The recommendation of the A.I.I.M.S. cannot

be made applicable, much less binding on the establishments of the

Armed Forces which are governed by their own rules and procedures

for medically examining a candidate by specialized Medical Board

and empowered under law to take a decision on the basis of the

recommendation of such a Board.

Accordingly, in the facts and circumstances of the case,

we see no reason to make any indulgence into the matter. The

Appeal stands dismissed.