BABU KHAN Vs. D G OF MEDICAL SERVICES

JUDGEMENT

(1.) In this case the petitioner applied for recruitment as a soldier G.D. Clerk Category in the Indian Army. As per the requirement of the Recruitment Board, he was invited for a thorough medical examination to be carried out by the Recruiting Medical Officer at Meerut Division. The petitioner was declared medically fit. The petitioner was thereafter called for a written test and he was declared as a successful candidate in the written examination. On 2.12.1999 the Recruiting Officer, Branch Recruiting Office, Meerut Cantt, issued a letter to the petitioner stating therein that he is selected for recruitment as a soldier G.D. clerk category on the basis of merit of the above mentioned examination and he was directed to approach the recruitment office, Meerut on 4.1.2000. The recruitment office at Meerut sent the petitioner to the Head Quarters, M.P. B and Q Area, Jabalpur for undertaking necessary training. During training the petitioner performed his duties sincerely and honestly and he also appeared in the Map reading examination successfully. After 4-5 months a general medical examination was held at training centre at Jabalpur (M.P.) and every trainee was required to appear for this second medical examination. After the examination to the utter shock and surprise the petitioner was verbally told that he is medically unfit and was asked to report to the medical hospital of the Army, where he was kept for certain time for the required treatment, although it is pleaded in the petition that no treatment was ever given. In September, 2000 he was given a pass of sleeper class, entitling him to undertake journey from Jabalpur to Ghaziabad, and he was told that he has been discharged from service on the ground of being medically unfit. He was informed by his superiors that since he had flat feet, which is a disqualification to be a good soldier, he is discharged. The respondents cleared the accounts of the petitioner up to 17.9.2000. Aggrieved by the discharge, the petitioner has filed the present writ petition for an appropriate writ or order quashing the discharge order issued by the respondents.

(2.) The learned counsel for the petitioner has strongly urged that the petitioner had joined Army on 4.1.1999 after thorough medical examination and as such the second medical examination after 4-5 months of training is patently illegal, unlawful and liable to be quashed. The counsel for the petitioner further submitted that the petitioner has no medical defects and is of sound health. During the training there was no complaint of his superiors towards fulfilling his duty and thus his discharge from service is unlawful and illegal. It is further submitted that the carrier of the petitioner has been ruined at the hands of the respondents, since he is a fully qualified candidate for the service. The counsel further submitted that the petitioner had left his studies of B.A. 1st year and joined the military and by the act of the respondents his educational carrier has been jeopardised.

(3.) Learned counsel for the respondents submitted that petitioner was sent to Grenadiers Regiment Centre, Jabalpur for basic military training which commenced on 7.1.2000. The second medical examination of the petitioner was carried out during basic military training, under the provisions of Army Headquarters letter No.76063/DGMS-5A dated 6.7.1999 at the Medical Inspection Room. During the second medical examination of the petitioner his disability was found as flat feet and the petitioner was referred to the military hospital Jabalpur to ascertain the correct diagnosis of his disability. The petitioner was admitted in military hospital, Jabalpur on 11.5.2000. The classified specialist (Surgery) and senior advisor (Surgery) of military hospital, Jabalpur also detected that the petitioner is suffering from flat feet and it was recommended that he be invalidated out in the medical category EEE. It is submitted by the counsel for the respondents that flat feet is not a treatable condition of the disease and that is why the petitioner was declared unfit for further military service. The petitioner was brought before the Invalidated Medical Board on 5.8.2000 and subsequently he was invalidated out of service on 17.9.2000 under Army Rule 13(3) item III (iii), having been found medically unfit for further military service, in the category of EEE. The counsel for the respondents further submits that the disability of the petitioner remained undetected by the recruiting military officer during the primary medical examination and the respondents have carried out the second medical examination. It is submitted that at times a disease remain undetected at the preliminary examination that is why the DGMS-5A Army Headquarters has incorporated a second medical examination in military hospital vide their letter No.76063/DGMS-5A dated 6.7.1999. Copy of which has been filed by the respondents along with their counter affidavit. In accordance with the aforesaid communication, candidates recruited are to be subjected to a second medical examination at the authorized hospitals. In fact in the aforesaid communication it has been stressed that recruits should not be declared unfit for treatable disability. The petitioner has not been singled out for a second medical examination and in fact the petitioner has admitted in the writ petition that every trainee was required to appear for the second medical examination, so there has been no discrimination against the petitioner and he has not been singled out for a second medical examination. It would be useful to reproduce para 2 of the brief facts as well as para 1 of the counter affidavit. The same reads as under: