Nishu Kumar vs Union Of India And Ors

1 Pursuant to an Advertisement Notice issued by the Army Recruiting Office, Jammu for holding Army Recruitment Rally for the eligible candidates of Districts Udhampur, Poonch, Ramban, Doda, Kishtwar, Rajouri and Reasi from 01.09.2019 to 10.09.2019 at subsidiary Training Centre at Talwara, Reasi. The petitioner being a resident of Udhampur applied for being enrolled as Soldier Tdn (All Arms). He attended the recruitment rally, presented all his testimonials and was, accordingly, admitted to undergo physical tests on 07.09.2019. The petitioner claims that he qualified both the physical standard tests as well as physical tests and was, accordingly, given a token for undergoing medical examination. The petitioner was subjected to medical examination by the Medical Board and was found physically fit for army duty. He was, accordingly, called for written examination. The written examination was conducted by the respondents at Army Public School BD Bari Brahmana, Jammu on 26.10.2019 which examination too was cleared by the petitioner successfully. Consequently, the petitioner was selected for the post of Soldier Tdn (All Arms) by the ARO, Jammu.

2 The petitioner as directed reported to ARO, Jammu on 21.12.2019 and was again subjected to some informal medical check up before issuing transit warrant for undergoing training at BEG Training Center, Uttrakhand. It is submitted that after the petitioner was found fit and selected, a communication was issued by respondent No. 4 on 29.11.2019 to the SSP, Udhampur for verification of antecedents of the petitioner. In response, the SSP, Udhampur vide his letter dated 30.11.2019 intimated respondent No.4 that there was nothing adverse in the police record against the petitioner. After completion of all these formalities, the petitioner was ultimately enrolled into the Army and was directed to report on 21.12.2019 for proceeding to undergo basic training at Uttrakhand. The petitioner states that while he was all set to go for training, he was taken aback when he was told to report to Zonal Recruitment Officer Jallandhar for further medical check up. The said ZRO referred the petitioner to respondent No.4 for further medical check up. The petitioner was medically examined and was diagnosed to be suffering from 'Extensive Spcrotal Sebacoous Cysts (Systoma Multiplex)'. The petitioner was, accordingly, told that he was medically unfit on account of suffering from the aforesaid disease and, therefore, cannot be deputed to undergo the training. The petitioner was sent home with the assurance that he would be called back again once he recovers from the aforesaid disease. It is further the case of the petitioner that after he underwent treatment and was fully cured of the aforesaid disease, he reported for duties after obtaining a certificate of fitness from the CMO, Udhampur, but he was not permitted to join. It is in the aforesaid backdrop, the petitioner has approached this court seeking the reliefs prayed for in this writ petition.

3 On being put on notice, the respondents have appeared and have filed objections. In the objections, stand taken by the respondents is that the petitioner was thrice examined by the Medical Officers and it was found that he was suffering from 'Extensive Scrotal Sebaceous Cysts' and, therefore, not fit for Army service. It is submitted that the petitioner's initial medical was done on 8.9.2019 along with other selected candidates and was also subjected to dispatch medical as per the policy on 21.12.2019 wherein he was diagnosed for 'Extensive Scrotal Sebaceous Cysts'. He was referred to the Senior Recruiting Medical Officer, who concurred with the finding of recruitment Medical Officer. The petitioner was explained about his disability and advised to report to 166 Military Hospital, Jammu for specialist's review. At 166 Military Hospital, Jammu, the specialist reviewed the medical fitness of the petitioner and declared him unfit on 10.02.2020. It is, thus, submitted that the petitioner was examined by the specialist at 166 Military Hospital, Jammu on 06.020.2021 i.e after a gap of 48 days and by that time the disease the petitioner was suffering was persisting. It is, thus, submitted that in view of the aforesaid medical condition, the petitioner was not permitted to go for the recruitment training and, thus, was rightly sent back home.

4 Having heard learned counsel for the parties and perused the record, it is seen that the petitioner, who participated in the recruitment rally for appointment as soldier in Indian Army cleared all the tests including the physical tests. He also qualified the written examination and, thus, was declared selected for the post. After conducting the medical examination of the petitioner declaring him fit for army service, not only the petitioner was enrolled as soldier, but was also deputed to undergo the recruitment training in the Recruitment Centre at Uttrakhand. However, as per the recruitment norms, issued by the Army Headquarter vide letter dated 03.04.2017, particularly para 6 thereof, even at the time of dispatch to undergo recruitment training, the recruitment Medical Officer is obliged to carry out the medical inspection to rule out any fresh disease or injury following the initial medical examination.

5 As is the stand of the respondents, it is in terms of the aforesaid policy, the petitioner was once again medically examined and was diagnosed as 'Extensive Scrotal Sebaceous Cysts' . With a view to rule out any ambiguity, he was so referred to 166 Military Hospital for seeking the opinion of the specialist. Since the specialist also concurred with the view of the recruitment Medical Officer and, therefore, he was declared unfit for army service. It is in this background, the petitioner has been shown the door despite the fact that he was duly selected and was found fit in the initial medical examination.

6 From the medical opinion placed on record, it is not forthcoming clearly as to whether the disease, which was later on diagnosed, had escaped assessment at the time of initial medial examination or it was the disease that was later on contracted by the petitioner.

7 It is true that the respondents are well within their rights to subject the recruit to medical examination again at the time of his dispatch to the recruitment training, but that medical examination is limited to find out as to whether the recruit has contracted some disease after the initial medical examination and which renders him unfit for the army service. As noticed above, no such opinion from the Medical Board has come. The petitioner has placed on record ample material in the shape of opinions of the Civil Doctors to assert that the disease which the petitioner was suffering from was temporary in nature and with the treatment was cured.

8 Looking to the totality of circumstances obtaining in the case, it would be highly unjust and harsh to the petitioner, if he is not given an opportunity to be examined again so that he could prove and demonstrate that he is medically fit for Army service. This equitable view has been taken by this Court only taking into consideration that the petitioner is Schedule Caste and belongs to a marginalized section of society and has qualified all the tests including the written examination as well as the initial medical and physical fitness tests. In that view of the matter, I am of the considered view that the ends of justice would be met, if this petition is disposed of by directing as under:

(i) the petitioner shall present himself before the Recruiting Officer or any other officer, who is competent in this behalf, within a week from the date of passing of this judgment; and

(ii) the Recruiting Officer or any other officer, who is competent in this behalf shall arrange the Review Medical Board. If the Review Medical Board, after examination finds the petitioner fit for army service, he shall be enrolled and dispatched to the recruitment training without any further waste of time. However, if the petitioner is declared unfit for Army service, the mater shall be put quitus.

Disposed of as such.