ROHIT SINGH BAGHEL Vs. UOI

JUDGEMENT

(1.) In this petition for a writ of certiorari, the petitioner calls in question a communication dated 29th November, 2006 declaring the petitioner medically unfit for recruitment to the Indian Army.

(2.) The petitioner is a graduate in Mechanical Engineering. In response to a notice published by the Union Public Service Commission, he appeared in what is described as "Combined Defence Services Examination" in February, 2006 with service in the Indian Air Force as his first choice. He was declared successful and placed at Sl. No. 63 of the merit list for the Air Force and at Sl. No. 130 in the merit list for the Indian Army. He was interviewed by the 2nd Air Force Selection Board, Mysore and declared successful shortly whereafter he was examined by a Medical Board at the Institute of Aero Space Medicine (IAM) (AF), Vimanpura in Bangalore. The Medical Board was of the opinion that the petitioner was unfit for recruitment in the Air Force on account of what is described as "Attempted Unilateral Sacralisation LV-5 on the left side". The petitioner preferred an appeal against the said decision and opted for recruitment in the Army for which purpose he was examined at the Army Base Hospital at New Delhi. The Base Hospital was also of the view that the petitioner suffered from "Attempted Unilateral Sacralisation" and declared that he was unfit for recruitment in any one of the three wings of the armed forces. Aggrieved the petitioner has filed the present writ petition challenging the communication received by him from the Directorate General of Medical Services, Air Headquarter and for a mandamus directing the respondents to permit the petitioner to join armed forces (Air Force/Army) as a recruit.

(3.) We have heard learned counsel for the parties and perused the record. Learned counsel for the petitioner argued on the basis of Appendix-V to the notice published by the UPSC inviting applications for recruitment that Incomplete Sacralisation, Unilateral or Bilateral was a condition which rendered a candidate unfit for recruitment only in the Air Force. He urged that the said condition did not render unfit candidates for recruitment to the Indian Army. The respondents have disputed that position in the Counter Affidavit and asserted that candidates with Unilateral(Incomplete) Sacralisation were unfit for recruitment even in the Indian Army as the same is considered "mal- development or impairment of function of the bones or joints" as stipulated in para 2(b) of Appendix-B of Policy Letter No. 76054/Policy/DGMS-5A dated 22nd December, 2000, a copy whereof has been produced as Annexure-A1 to the Counter Affidavit. Reliance is also placed upon instructions issued by the Army Headquarter under No. DGAFMS/DG-3A Note No. 9450/Policy/DGAFMS/DG-3A dated 20th January, 1995 and DGAFMS/Sr.Conc (Surgery) note No. 27480/DGAMFMS/SC(S) dated 30th March, 1995 Annexure A2 and A3 respectively. A perusal of the later of the two communications dated 30th March, 1995 would show that the same simply recommended amendments to the manual of medical examination so as to include unilateral or incomplete bilateral Sacralisation of LV-S as a ground for declaring the candidates suffering from that condition to be unfit for recruitment to the Indian Army. Since the amendments proposed were only in the nature of recommendation to be formally incorporated in the guidelines regarding physical fitness of candidates for commission in the armed forces, we had directed the respondents to file an affidavit specifically stating whether the said amendments had been actually carried out and uniformly followed for purposes of recruitment. In compliance with the said direction, Mr. Tikku has filed an affidavit sworn by Col. A.K. Upadhyay, Director MS (PS) Office of Directorate General of Medical Services (Army) AG"s Branch, Army Headquarter, New Delhi. The affidavit inter alia states that the amendments proposed in letter dated 30th March, 1995 supra as also those in office Note dated 10th April, 1995 have been accepted for the Army as per Office of DGMS (Army) Note No. 76054/Policy/DGMS-5(A) dated 1st December, 2000 copy whereof has also been produced with the affidavit. The relevant portion of the office note dated 1st December, 2000 is as under :