IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B. Civil Writ Petition No.6815/02 Ravindra Chaudhary vs. Union of India & Ors. Date of Order : : 9.01.2009 HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ashwini Jaiman) Shri Chandragupta Chopra) for petitioner. Shri M.S. Raghav for the respondents. REPORTABLE This writ petition has been filed by the petitioner way back in the year 2002 challenging the order of his discharge dated 12.8.2002. The petitioner participated in the recruitment process of Army held in Banswara which was initiated on 19.4.2001. He was subjected to race, physical fitness, medical fitness, written test etc. and was ultimately declared successful. He was appointed as General Duty Jawan / recruit and was asked to report to I-EME Centre, Secunderabad (Andhra Pradesh). Learned counsel for the petitioner has submitted that the petitioner was medically examined at Banswara by Major Shri R.S. Negi, Recruitment Medical Officer, BRO Alwar. The 1 copy of medical examination report is on record. It is evident from the entry in column 11, thereof that vision of the petitioner in both the eyes is found to be 6/6 which is a perfect vision. Learned counsel for the petitioner submitted that petitioner was taken on duty on 7.7.2001 and was asked to report at Secunderabad where he joined on 10.7.2001. He was then subjected for second medical examination on 13.7.2001. He was referred for further examination to Lt. Col. Medical Officer Shri V.K. Mishra who on 17.7.2001 declared the petitioner as unfit. 1 EME Centre, Secunderabad informed Army Headquarter with respect to the fitness of the petitioner by their letter dated 28.3.2002. Director General of Medical Services (Army) by letter dated 24.4.2002 asked 1 EME Centre Secunderabad that the petitioner and other recruits have correctable disabilities and they may be forwarded to the concerned authorised hospital for assessment and treatment as per existing order. The petitioner was sent to Military Hospital, Secunderabad on 7.6.2002. However, he was not given any treatment and he was discharged on 12.8.2002. It was argued that even according to the experts of the respondents, the disease of the 2 petitioner was curable one and the decision of the respondents to again subject the petitioner to medical examination was contrary to para 135 of the Regulations of Army which in its clause (d) provides that medical re-examination immediately on arrival at his unit of a recruit enrolled by a Recruiting Officer and passed fit by a recruiting medical officer is not permissible and only in exceptional cases where the medical officer in charge of the case considers it unlikely that a recruit will make an efficient soldier, he will be medically boarded before undergoing training. Shri Ashwini Jaiman, learned counsel for the petitioner argued that the respondents have discharged the petitioner based on the letter dated 6.7.1999 of Director of Medical Services (Army). This letter came to be interpreted by M.P. High Court wherein the Single bench in Writ Petition No.5189/2000, Pradeep Kumar Singh vs. Union of India & Ors. decided on 5.12.2001 held that the decision to again subject recruit to medical examination with reference to para 135(d) of the Regulations, supra was bad in law as this could be done only in exceptional circumstances when medical officer is satisfied that Recruit is unlikely to become an efficient 3 solider. By that judgement, as many as eight writ petitions were allowed and discharge of recruits was set aside. Considering the fact that the matter pertains to defence service and security and other various important aspects were involved, despite the fact that medical re-examination was held to be not permissible, it was directed that petitioner shall be subjected to fresh examination to be conducted jointly by the team of three persons consisting of two specialists of AIIMS as may be nominated by Director of AAIMS, New Delhi and another to be provided by the Director General, Medical Services of the Army and in case any of the petitioner is found unfit on fresh medical examination to be conducted, he may represent for remustering as a special case, which may be considered by the respondents sympathetically. It was directed that the petitioners be reinstated with 50% back wages. The matter was taken to division bench before which the aforesaid judgement of the single bench was challenged by the Union of India. The division bench appeals were disposed of by judgement dated 11.7.2002 in Appeal No.166/02. The Union of India come out with the plea before the division bench that the army will conduct fresh 4 medical examination of the recruits by the Doctors other than those who examined him earlier and in case he is found fit, they will be reinstated with 100% service benefits. In case he is not found fit, he will be provided free home transport facilities. Learned counsel submitted that similar treatment should be granted to the petitioner particularly when the aforesaid judgement has attained finality in which a view was taken by the Court that the statutory regulations could only be supplemented and not supplanted by executive instructions. Shri M.S. Raghav, learned counsel for the respondents opposed the writ petition and submitted that as per the instructions of Director General of Medical Services (Army) dated 6.7.1999, second examination of the petitioner could be conducted and in the present case, second examination when conducted revealed that petitioner had sub-standard vision and therefore he was unlikely to become an efficient solider and being found unfit was discharged under Army Rule 13(3)(iv). It was argued that para 135 of the Regulations for the Army, 1987 did not put a complete embargo on 5 the power of the respondents to sent him for second medical examination. The enforceability of para 135 of the Regulations, supra which have been framed under Section 192 of the Army Act, vis-à-vis the instructions issued by the Directorate dated 6.7.1999 was considered by the M.P. High Court and detailed discussion was made in para 6 to 13 of the aforesaid judgement in which it was observed as under: “6. Letter indicates the procedure for second medical examination has to be conducted in what manner. It does not lay down that every candidate has to be subjected to second medical examination. It contains the instructions in what manner the recruit has to be treated if the second medical examination is done, the Recruit has to be treated. Correctible disabilities like hydrocele etc. will be referred to the authorized hospitals for treatment and retained in services in accordance with the stipulations of MT-3. It was also emphasized that present practice of declaring recruits unfit for treatable disabilities, will cease forthwith. Another letter which is relied on by the learned counsel for respondents is dated 25th August, 1989 which reads as under:- `Zonal Recruiting Officer, Ajmer, Ambala, Bangalore, Calcutta, 6 Danapur, Jabalpur, Jalandhar, Kunraghat, Lucknow, Madras, Pune, Shillong. Independent Recruiting Officer Delhi Cantt. All Regiment & Corps Training Centres. MEDICAL EXAMINATION OF RECRUITS 1. A case has recently come to the notice of this Headquarters, wherein a recruit has been discharged from service due to “Systolic (heart) Murmur”. This has led to embarrassment for the Recruiting Organisation suggesting that medical examination at the recruitment stage is not being conducted thoroughly. 2. Systolic (heart) Murmur can justifiably be a cause of difference of opinion regarding its organic or functional origin, specially when adequate facilities for investigations do not exist locally. Recruiting Medical Officer may, however, be advised to exercise more care while examining the candidates for this disability. 3. When a previously fit candidate is declared medically unfit during a second medical examination shortly thereafter, the relevant medical opinions/documents should be expeditiously sent to DGMS-5A. 7 Army Headquarters for further expert scrutiny and final opinion. Disposing such medical documents without any referral to higher medical authorities is not a desirable procedure. 4. In view of the above, it is requested that the procedure suggested in para 2 and 3 of the letter may be adopted at the time of medical examination of recruits.” 7. The said letter also does not in any manner dilutes the regulation nor it can dilute the effect of regulation. It is nowhere mentioned in the said letter that each Recruit should be subjected to fresh medical examination. 8. It becomes clear from a bare reading of para 135 of Regulation that all Recruits have to be subjected to medical examination prior to enrolment or engagement as per clause (a) of para 135 of the Regulations. Clause (b) and (c) deals with the procedure of medical examination at the time of recruitment. Clause (d) of para 135 deals with the medical re-examination. It clearly prohibits medical re-examination; it unambiguously provides that “immediately on arrival at the unit of a Recruit enrolled by a Recruitment Officer and passed fit by a Recruiting Medical Officer is not permissible.” What is laid down in mandatory terms “only in 8 exceptional cases, where the medical officer in charge of the case considers it unlikely that a recruit will make an efficient soldier, he will be medically boarded before undergoing training.” This power can be exercised before undergoing training. Once the training is done, it appears to be prima-facie impermissible that such a re-examination can be conducted except under clause (e) of Regulation 135 it is only when a recruit breaks down while undergoing training or is found to be suffering from a disability likely to prevent him becoming an efficient solider, he will be medically boarded. This is not the case of the either party. The re-examination under 135(d) is permissible only in exceptional cases and in such a case medial officer in charge of the case has to record a finding that it is unlikely that the Recruit will make an efficient soldier. It is not the case of respondents that it was so done. All the recruits were sent out rightly for medical check up which exercise is prima facie impressible as per regulation 135 (d) and is without jurisdiction. Thus, it is held that the petitioners were wrongly subjected to re-examination that is second medical check up without recording a finding that they were unlikely to become efficient soldiers. The action violates the provision of Regulation 135 (d). The petitioners were treated as if 9 they were fresh recruits whereas once a person is recruited, his case has to be treated in accordance with para 135(d) and (e) of the Regulation. 9. The main plank of submissions of the respondents are in the form of letter and executive direction. This letter R/4 and executive instructions contained in P/4 cannot have the effect of diluting in any manner under statutory regulation 135(a) and 135(b). 10. It is settled law that statutory regulations can be supplemented by the executive instructions where there is a gap. They can be supplemented but not sup-planted. Executive instructions cannot override the regulations which have statutory force. In P.D. Aggrawal and others v. State of U.P. and others AIR 1987 SC 1676 and in B.N. Nagrajan and others v. State of Karnataka and others AIR 1979 SC 1676 it was so emphasized by the Supreme Court. The action of the respondents indicates that total goby has been given to the safeguards provided under the statutory regulation. Only in exceptional circumstances when medical officer is satisfied that Recruit is unlikely to become an efficient soldier, re-examination is permissible. The jurisdiction does not vest in the medial officer to go for general medical examination of each and every Recruit. This is totally impressible and practice 10 has to be stopped until and unless the regulation itself is amended. 11. However, in the instant case as the service is a defence service; security and other various important aspects are involved and though the medical re- examination was not permissible to be conducted and insinuations are made on particular regimental unit, without going into that in detail, suffice it to say that fresh examination should be conducted by special medical board constituted for the purpose. 12. Both the learned counsel for the parties suggest that a team of specialists of Director General Medical Services of the Army and all India Medical Science may be asked to medically examine the petitioners and submit the report for which the expenses will be borne by the respondents. However, the discharge order is liable to be set aside. The petitioners are directed to be reinstated. They be sent to the fresh medical examination as agreed to by the learned counsel for the parties. 13. Writ petitions are allowed. Impugned orders of discharge are quashed. Petitioners are directed to be reinstated. However, the petitioners are granted 50% of the back wags. Remaining will depend upon the ultimate outcome of the fresh medical examination to be conducted jointly by the team of three 11 persons consisting of two specialists of AIIMS as may be nominated by Director of All India Institute of Medical Science, New Delhi and another to be provided by the Director General Medical Services of the Army. In case, any of petitioner is found unfit on fresh medical examination to be conducted, he may represent for remustering as a special case, which may be considered by the respondents sympathetically. It is made clear that this Court has not opined on entitlement of the petitioner/s to remustering as of right. Cost on parties. “ It would be evident from perusal of the aforesaid judgement that the M.P. High Court held that the statutory regulations could only be supplemented by the executive instructions and not supplanted. According to Regulation 135(d), medical re-examination could be ordered only in exceptional cases where the medical officer is satisfied that Recruit is unlikely to become an efficient soldier. It was held that jurisdiction does not vest in the medical officer to go for general medical examination of each and every Recruit. This is totally impermissible and this practice has to be stopped until and unless the regulation itself is amended. It is common case of the parties 12 that Regulation 135 exists in its original shape as it was considered by M.P. High Court in the aforesaid judgment. After all, para 135 (d) of the regulations clearly provides that medical re-examination immediately on arrival at his unit of a recruit enrolled by a Recruiting Officer and passed fit by a recruiting medical officer is not permissible. It further provided that in exceptional cases where the medical officer in charge of the case considers it unlikely that a recruit will make an efficient soldier, he will be medically boarded before undergoing training. In the present case, it is clear that the second / re- medical examination of the petitioner was not preceded by any such suggestions recorded by Medical Officer. In fact, the Medical Officer found that the disability of the petitioner was curable one and it was a curable disability referable to experts. The petitioner has asserted that instead of being subjected to such treatment, the petitioner was discharged from service. A perusal of the aforesaid judgment and in view of what has been ultimately held by the division bench, it would be evident that Union of India itself offered to subject such recruits to fresh medical 13 examination by doctors other than those who examined them earlier and in case he was found fit, he would be reinstated with 100% service benefits and if found unfit, he would be provided free home transport facility. The judgement of learned Single Judge appears to have been modified in the light of that offer because the learned Single Judge while quashing the order of discharged directed that the petitioner shall be reinstated with 50% back wages and remaining would depend upon the ultimate outcome of the fresh medical examination to be conducted, but that direction was passed in view of the fact that the writ petitions filed by recruit in the aforesaid case was disposed of rather expeditiously. In the present case, the discharge of the petitioner was made on 12.8.2002 and more than 6 years have gone by since then. In view of the aforesaid discussion, the writ petition is allowed. The impugned order of discharge is quashed and set aside. The respondents are directed to reinstate the petitioner with liberty to again subject him to fresh medical examination by doctors other than those who examined him earlier and in case he is found fit, continue him in employment. 14 Having regard to the facts of the case, it is directed that petitioner shall be entitled to only notional benefits for the intervening period. If however, eventually, he is found fit and in the event of his continuance in service, he will be entitled to seniority of the intervening period and notional benefits on that basis treating his appointment as continued throughout. Compliance of the judgment shall be made within a period of three months from the date of receipt of copy of this judgment by the respondents. (Mohammad Rafiq),J. RS/ 15