IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8561 of 2006 MD.TARIQUE ANWAR Versus THE UNION OF INDIA & ORS ----------- For the Petitioner: Mr. Dhurb Narayan Sr.Advocate Mr. Rahiva Ranjan, Advocate For the Union of India: Dr. Mayanand Jha, Advocate ---------- 3 19.8.2008 Heard learned counsel for the parties. Petitioner was provisionally selected for recruitment in the Indian Navy and by a communication dated 4th July, 2005 contained in annexure-1 he was asked to report at INS Chilka in the State of Orissa on 2nd August, 2005. But the communication contained in annexure-1 categorically laid down that the final enrollment of the person concerned will be subject to final medical fitness and other tests which was to be conducted by the respondents. Serial no. 7 of the communication also categorically lays down that if a person is found medically unfit or performance unsatisfactory in any of the tests or activities he could be discharged from the Indian Navy. By virtue of annexure-1 it is quite clear that the selection of the petitioner was totally provisional and conditional. Subsequently based on a decision dated 24th November, 2005 contained in annexure-2 the petitioner has been discharged from Naval services based on the opinion of a medical board. Annexure-2 is the cause of action for filing the present writ application by the petitioner. Learned Senior counsel appearing on behalf of the - 2 - petitioner submits that once he was enrolled by the respondents and he having worked under the respondents for more than three months he could not be discharged in a manner in which it was done. His alternative argument is that in terms of the new Act namely, “ Persons with Disabilities (Equal Protection of Right and Full Participation) Act, 1995” the respondents should have made arrangement for alternative employment if he was found to be disabled in terms of the opinion of the medical board. The respondents have filed their counter affidavit and they have denied most of the assertions made by the petitioner. They have categorically stated that the selection of the petitioner was a provisional selection for enrollment and conferment subject to final medical examination and petitioner having successfully completed various training and activities. He did report and he under went some basic training. But when final medical examination of the petitioner was held on 27th August, 2005 within 25 days of his reporting his case was referred for an opinion before a surgical specialist. The specialist opinion conferred the basic finding that the petitioner was suffering from KNOCK KNEE. Based on the examination of the medical opinion the petitioner was brought before Invalidment Medical Board Proceedings on 29th September, 2005. The decision was taken to invalid the petitioner based on medical reason which was approved by the headquarters and it is in this background annexure-2 has come to be issued. The respondents have stated - 3 - that the case of the petitioner will not be covered by Disabilities Act for more than one reason (1) that there is exemption to the applicability of the Act in so far as the Armed Forces are concerned. The notification dated 28th March, 2002 has been brought on record as annexure-D to the counter affidavit. Even otherwise merely because the petitioner has been declared to be medically unfit for permanent enrollment under the Armed Forces it does not mean that he is in any manner can be said to have acquired a disability which precludes him from enrollment or seeking employment in any other civil post or organization. The standard of physical fitness in the Armed Forces may not make the petitioner eligible for permanent enrollment and retention but that cannot be deemed to mean that the petitioner is suffering from disabilities as defined under the Disabilities Act, 1995. Keeping the above fact and legal position in mind the respondents have done no wrong in discharging the petitioner when he was not permanently enrolled on the ground that he was not found medically fit in various medical opinion rendered in the matter. Petitioner has no case for either retention or for other alternative employment under the Disabilities Act, 1995 as claimed by him. This writ application has no merit. It is dismissed accordingly. RPS (Ajay Kumar Tripathi, J.)