Branch Recruitment Officer and Others vs Rakesh Sukla

N.C. Jain, Actg. C.J.

This writ appeal has been preferred against the judgment of a learned Single Judge dated 21.8. 96 in Civil Rule No. 3384 of 1994.

In order to appreciate the controversy involed in the present writ appeal it is necessary to have a brief look at the facts of the instant case giving rise to the filing of writ petition by Respondent Rakesh Sukla.

Admittedly Respondent applied for the post of soldier Tradesman under army Medical Core. The application was filed in the Branch Recruting office, Rangapahar, Dimapur in the State of Nagaland. He having been called for screening test, physical test and medical examination, he was found fit on 3.8.93 for soldier Tradesman. Thereafter Respondent was called for common Entrance Examination which was held on 26.9.93. Respondent having appeared in the written examination was declared successful and he was informed vide Annexure-B attached with the main writ petition that he would be sent to the Training Centre. Thereafter, Respondent was again medically examined and found fit on 23rd of October, 1993 as has been averred by the Respondent but this fact was disputed by the Appellants. However, this Court need not go into this factual aspect of the matter because it is hardly relevant for deciding the real question in controversy. It appears that at a later point of time Respondent was again examined and one Lt. Col. A.N.C. Das found some problem with the hearing of the Respondent and declared him unfit. The medical report as given by Dr. Das which was approved by the medical Bord without examining the Respondent reads as under:

Diagnosis - CHRONIC ADHESIVE OTITIS MEDIA (RT)

SUMMARY AND OPINION OF LTCOL ANC DAS, CLASSIFIED SPECIALIST OF ENT OF CH (CC) LUCKNOW DATED 07 DEC 93

This 18 1/2 yrs old recruit was detected, during medical examination before conducting into training to have refraction and adhesions of Right Tympanic membrane. The recruit had only 25 days of service to his credit when his medical exam was done.

He denies any symptom. No aural discharge. No appreciable deafness, No tinnitus/vertigo, No H/O recurrent colds/Sorethroat.

ENT Exam- Nose & throat-NAD. Ears Rx Rt. Lt EAM NAD NAD TM Posterior half of drum fully retrac- NAD ted and plastered to medical wall of middle wall of middle ear, Middle ear ossicles, Joints and medial wall structures clearly visible through the drum Motility- Nil Tunning fork tests Rinne negative positive Weber Leateralized to Rt ABC NR NR Hearing test CV 16ft 20ft

PTA shows conductive deafness Rt ear in almost all frequencies with Rt Ac 35-50 dB and Rt BC normal,

X-ray mastoids- NAD. Diagnosis - CHRONIC ADHESIVE OTITIS MEDIA (RT).

Recommended to be invalided out of service in medical category EEE''.

Note: The disablity was existing before enrolment hence not attributable

Sd x x x x (ANC Das) Lt Col Clasified Specialist (ENT)

In view of the above, the indl is brought before the medical board.

10/12/93

Sd/- WITINS. WALIA Maj AMC

Graded Specialist (Derm.&STD)

On the basis of the aforementioned report, Respondent was discharged from the army where he was undergoing training after recuitment. The order of discharge served upon the Petitioner and which has been so attached with the writ petition as Annexure-D reads as under:

No. 13987094-M Rank RECT Name Rakesh Shukla Unit R.R.PL. No. AMT BN AMC C & SLKO Disability ADHESIVE OTITIS MEDIA (R,T)388

His disability is not to Interference in the performance of Suitable duties in civil employment.

S/d- President Bases Hospital Medical Board Lucknow-226002 BH LUCKNOW 17 DEC 93. Lt Col/Maj Presiding officer Medical Board

The Respondent thought and that too sincerely that since he was not suffering from any ailment of ear, he was wrongly discharge from the army and, therefore, he thought, which in our considered opinion rightly, to get himself medically examined from specialists outside. He in the first instance went to the specialist in the all India Institute of Medical Sciences and got himself examined. The medical certificate as given by the all India Institute of Medical Sciences is attached along with the writ petition as Annexure-F which reads as under:

... Imp Normal Ear...

Fit for appointment.

Respondent not only went to the all India Institute of Medical Sciences, he went to Bihar Speech &Hearing Clinic, Patna and got himself medically examined there. The relevant portion of the medical certificate given to the Respondent which is annexed to the writ petition as annexure -G reads as under:

... Right Ear I Bid within Normal Provisional Disgnosis : Left Ear Hearing limit. Sd/- 23/3 Audiologist

On the basis of the aformentioned documentary evidence the Respondent filed a writ petition before this Court Challenging the order of discharge primarily on the ground that the decision of the Army authorities was aribitrary and that he could not be discharged on the basis of his being medically unfit. It was the case of Respondent that he was medically fit as has been certified by the specialists to which reference has been made above. When the writ petition was pending before the learned Single Bench of this Court, it was thought appropriate by the learned Judge to have the Respondent examined through independent experts who could be none else than the ENT Department of Gauhati Medical College. The Gauhati Medical College authorities after examining the Respondent agreed with the findings recorded by the specialists of All India Institute of Medical Sciences and gave the following opinion .

Sir,

The undermentioned patient was examined vide direction of Hon''ble Gauhati High Court Memo No. 8655-56/RM dated 6th June, 1996.

Name of the patients- Sri Rakesh Sukla. Date of Examination- 6th June l996 (Pho tograph the person ex amined attested). Hosp. No. - 25985 Regd. No. 6972/96 Age- 22 years, Sex-Male. Following are the findings- History - No complaints of Ear, Nose and Throat. - No past history of ear discharge or any ear ailment. Examination Right ear Left ear External ear - No abnormality No. abnomality detected. detected. Tympanic -Normal colour, Normal colour membrane position, normal Position, normal anatomical stru- anatomical struct- ctures, transper- ures, transperent ent, normal mov- normal move ement ement, Hearing test - Conversation voce test 20 feet 20 feet Tuning fork hearing test - Rinne test +Vc +Vc Weber test ------------ Right ear Leftear ABC test Equal Equal. Fistula test Negative Negative Pure tone audiometry- Normal hearing in both ears (a duplicate copy of the audiogram is attached herewith). Impression - Normal ears (with normal hearing).

Opinion on the previous reports - We did not find any sign of adhesive otitis media in either ears as found by Army Medical Board. The findings of E.N.T. specialists of A.I.I.M.S. tales with our findings, so also the finding of Biher E.N.T. specialists.

In view of the findings recorded by the learned single Judge that the reports of the Gauhati Medical College and All India Institute of Medical Sciences are on the same line and that the report of the Army authorities was perverse, writ of mandamus was issued appointing the Petitioner as Grde solder Tradesman for which he was selected. Respondents (present Appellants) were burdened with Rs. 1500/- as cost as well. Feeling aggrieved against the judgment of the learned single Judge, the Appellants have filed the present writ appeal.

We have heard the learned Counsel for the parties and given our due consideration to the arguments advances by the counsel for the Appellants and we hasten to add that there is absulutely no force in any of the arguments of the counsel for the Appellants. In the first instance it deserves to be mentioned that the medical examination conducted by All India Institute of Medical Sciences deserves all credence as it cannot be denied that the aforesaid institute is one of the bast institutes in India. The opinion expressed by the experts of the All India Institute of Medical Sciences has been confirmed by ENT experts of Gauhati Medical College. In fact there was hardly any need to refer the Respondent to Gauhati Medical College in view of the two reports available on the record which certified that the Respondent was not suffering from any ailment of ear, but in order to be more sure, however, learned single Judge has taken proper care in having an independent opinion that should satisfy the Army authorities, in view of the three reports of specialists, they have only to declare that the report of Army authorities is erroneous, if not perverse. The chances of commission of a mistake by an expert of ENT in the Army could not be ruled out.

Normally this Court would have felt satisfied in affirming the judgment of the learned single Judge by accepting the three reports of the specialists which are available on the record, but we are further of the view that the judgment of the learned Single Judge can be upheld on additional ground to which reference would be made in the succeeding pragraphs of the judgment.

As has been seen by us while examining the report of the medical authorities, the recruiting authorites alleged that the Respondent was suffering from conductive deafness. Conductive deafness is not the precise ground for discharging a person who has been recruited to undergo training. Rule 26 of Appendix ''C'' of special Army Order under the heading "Instructions for the physical and medical examination of recruits for the Army" specifically lays down that no recruit should be enrolled who suffers from any of the following defects:

deafness; aural discharge; Perforation of tympenic membrane; dermatitis of the meatus (eczemateous or disquamative); conditions which after removal of cerumen prevent a through examination of the drum i.e. atresia of the meatus, exostosis and other neoplasmas; conditions giving a history of recurrent earache, tinnitus and vertigo.

The Respondent was not found to be suffering from deafness, aural discharge; perforation of tympenic membrane; dermatitis of the meatus (eczemateous or desquamative); conditions which after removal of cerumen prevant a though examination of the drum i.e. atresia of the meatus, exostosis and other neoplasms; conditions giving a history of recurrent earache, tinnitus and vertigo, On the other hand the Respondent was found to be suffering from conductive deafness which has been defined in The New Encyclopaedia Britannica, vol. 3:

...In conduction deafness, there is interruption of the sound vibrations in their passage from the outer world to the nerve cells in the inner ear. The obstacle may be earwax that blocks the external auditory channel, or stapes fixation, which prevents the stapes (one of the minute bones in the middle ear) from transmitting sound vibrations to the inner ear.

The report of the Army doctor and the latter two report may be harmonized if we look into the instructions for medical examination of records for the Army which provide that if the passage is blocked due to ear was, the ear is to be examined after removing the wax and in some cases after injecting necessary medicines, wax is to be removed and examination of the ear is to be carried out after 24 hours. The slight difference between the two reports may be for the fact that the wax, if any was not removed by the Army doctor at the time of examination.

In view of the aforementioned factual position which is apparent from the reading of the medical reports, the Respondent could not be discharged even by the Army authorities. Faced with the aforementioned situation, the learned Counsel has argued that in the case of recruitment or continuance of a person in the Army, strict standard of medical examination is to be adhered to and that too according to the standard prescribed by the Rules framed by the Army authorities. There cannot be any dispute to the proposition sought to be propounded by the learned Counsel. However, even according to the strictest proof, Respondent was declared medically fit at the time of recruitment and he could not be discharged until and unless he was found unfit according to the standard prescribed by the Army authorities. The reliance placed upon the judicial pronouncements in U.P. Finical Corporation v. Gem Cap (India) Pvt. Ltd. and Ors. AIR 1993 SC 1435 and AIR 1997 993 (SC) in our considered view, are misplaced . The Hontrte Supreme Court was dealing with different situations altogether in the aformentioned cases.

Before parting with the judgment it is necessary to observe that the counsel for the Appellants could not bring to our notice any order wherefrom it could be gathered that any officer has applied his mind that the ailment from which the Respondent was alegedly suffering was a disability which was likely to prevent the Respondent from becoming an efficient soldier and this is admittedly the requirement in accordance with Regulation 135 of the Regulation for the Army, Volume 1 which reads as under:

135, medical Examination of Recruits,- (a) All recuits 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 recruits for enrolment at unit HQ will be carried out at the Military Hospital located in the same station.

(c) Whenever a Recruiting Medical officer is in doubt as to the nature of a disability, he may refer the recruit to the 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.

A recruit, who is referred to a specialist for medical examination and opinion as mentioned above, will be provided where necessary, conveyance by rail or warrant to the nearest Military Hospital where the specialist is available, and back to the place of recruitment.

(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 soldier, will be medically boarded before undergoing training.

(e) When a recruit breakes 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.

It appears to us that the Respondent on being examined regarding some ear ailment after being medically examined by a Board was found unfit and thereafter he was discharge straight way without any authority applying its mind whether the ailment from which he was allegedly suffering was a disability of the type which was likely to prevent him from becoming an efficient soldier. The order of discharge being an act which suffers from non-application of mind has to be declared illegal and non-est. To say the least, the act is arbitrary, unfair and unreasonable and we declare it to be so.

For the reasons recorded above the judgment of the learned Single judge does not call for any inteference. The writ petition fail and we dismiss it with cost which is quantified at Rs. 2,500/-.