IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.9.2009 CORAM THE HON'BLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HON'BLE MR.JUSTICE N.KIRUBAKARAN Writ Appeal No.1301 of 2008 H.Silvester .. Appellant Vs. 1. Union of India rep. by its Secretary to Government Ministry of Defence North Block, New Delhi. 2. The Chief of the Army Staff Army Head Quarters New Delhi. 3. Lieutenant Colonel AIR Defense Artillery Training Centre Nasik Road Camp Maharashtra. .. Respondents Appeal under clause 15 of the Letters Patent against the order of the learned single Judge dated 26.2.2008 made in W.P.No.31200 of 2005, under Article 226 of the Constitution of India, writ of Certiorarfied Mandamus calling for the records of the respondnets especially the third respondent relating to his proceeding made in No.CF/15767273N/R&D/21/A dated 15.07.2005 and quash the same as null and void, illegal and invalid and arbitrary and consequently directing the respondents to provide re-employment with the same or alternative or by creating a supernumerary post on the same scale of pay till correct medical opinion is arrived after sending forthwith the petitioner for re-medical examination to medical board or team of Doctors or to provide fresh Discharge Certificate asserting Ex- serviceman status with all available concessions entitled to be an Ex-Serviceman besides disbursing all outstanding monetary benefits from 1997 together with interest at the rate of 18% per annum apart from providing compensation to the time of Rs.4,00,000/-. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mr.Amal Raj For Respondents : Mr.K.Ilango Asst. Solicitor General J U D G M E N T (Delivered by S.J.MUKHOPADHAYA,J.) The appeal has been preferred against the order dated 26.2.2008 passed by the learned single Judge, whereby, the writ appeal preferred by the appellant was dismissed. 2. As the case can be disposed of on a short point, it is not necessary to discuss all the facts, except the relevant one. 3. The appellant (hereinafter referred to as the "petitioner") appeared for Defence Services selection during November 1997 and after general medical test conducted at Trichy, he was recommended for appointment as Sepoy, after training. The petitioner was sent to Nasik Camp AD Arty Training Camp for training. During training, having noticed some defects, he was sent for re-medical test. During re-medical test, the petitioner was found not fit for appointment by the Medical Board as there was a minor curve in both his feet, which was described in the medical term as "bilateral Pes Cavus dejoinder prescut". In view of the report of the medical Board, the petitioner was discharged from service on 17.5.1998, giving rise to the writ petition. 4. The learned counsel appearing on behalf of the petitioner submitted that the petitioner was found fit in the primary medical examination. He placed reliance on the primary medical examination report issued under the signature of Regimental Medical Officer/Recruiting Medical Officer, Branch Recruiting Office, Guntur, who examined the petitioner at Trichy, during his selection along with large number of candidates who took part in the mass selection test. 5. Per contra, according to the learned Assistant Solicitor General appearing on behalf of the Ministry of Defence, the petitioner, having wrongly selected though medically unfit, he was rightly discharged from service. 6. The case was taken up much earlier, when the respondents were allowed time to bring on record any Rule/Guideline issued by the respondents prescribing disease/physical defects to declare a candidate medically unfit during medical examination. The Manual for Recruiting Medical Officer, 1989 has been brought on record by respondents. https://hcservices.ecourts.gov.in/hcservices/ 7. We have heard the learned counsel for the parties and perused the records. 8. It appears that the petitioner was earlier medically examined along with large number of candidates by Medical Officer of Branch Recruiting Office, Guntur a general physician. During the routine medical examination, the Regimental Medical Officer (Army), Army Air Defence Centre, Nasik, found that the petitioner was having disability (Bilateral Pes Cavus) which does not meet the physical standards of an effective soldier in the army. Since there was difference of opinion with the Medical Officers, the case was referred to Senior Medical Advisor, Military Hospital, Devlali on 9.1.1998 for review and opinion for his retention in the Army. He was admitted in the Military Hospital, Devlali and thereafter transferred to INHS, Ashwini, Colaba, Mumbai on 12.1.1998. The classified specialist in surgery confirmed that the petitioner was having disability "Bilateral Pes Cavus" deformity and hence, unfit for Army service. The petitioner was thereafter transferred to Military Hospital, Devlali. 9. It appears that the petitioner was subsequently examined by the Medical Board duly constituted at Medical Hospital, Devlali, on 11.4.1998, to assess the cause, nature and degree of disablement of the petitioner. The Medical Board confirmed that the petitioner was having the above disability, which existed prior to his enrolment and also could have been detected. The Medical Board also viewed that the petitioner's disability "Bilateral Pes Cavus" was neither attributable to nor aggravated by the service condition and assessed his percentage of disablement "nil" for life. The invalidating Medical Board recommended that the petitioner be invalidated out of service in medical category EEE, i.e. permanently unfit for military service. Based on the recommendations of the invalidating Medical Board, the petitioner was invalidated out of service and was SOS (Struck Off Strength) from Army with effect from 18.5.1998 under Army Rules 13(3)(iv) with total service of 139 days. 10. The above said fact has not been disputed by the petitioner and it has also been brought to our notice that under the Manual for Recruitment Recruiting Medical Officer - 1989, a number of deformities, such as Knock knee, Hammer Toe, Hallux Valgus, Hallux Rigidus, etc. have been prescribed as disability to appoint a person in military service. Clause 9 of the Manual, 1989 reads as under: "Any other Congenital Abnormality.- Candidate with deformities like Talipes, Pes-cavus (Toes are clawed and callosities form over metatarsal heads) or contracture of planter fascia, etc. should be permanently rejected." https://hcservices.ecourts.gov.in/hcservices/ 11. From the aforesaid manual and as quoted above, it will be evident that Pes-cavus has been prescribed as one of the disability for appointment in the service of respondents. 12. In view of the prescribed procedure and manual, the petitioner having found medically unfit for continuing in the Army service, the learned single Judge has rightly disallowed the writ petition. We find no ground made out to interfere with the said order. Accordingly, the appeal is dismissed. However, this order shall not stand in the way of respondents to pay remuneration for 139 days, as undertaken before the learned single Judge. There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kpl To 1. The Secretary to Government Ministry of Defence North Block, New Delhi. 2. The Chief of the Army Staff Army Head Quarters New Delhi. 3. Lieutenant Colonel AIR Defense Artillery Training Centre Nasik Road Camp Maharashtra. 1 cc To Mr.A.Amalraj, Advocate, SR.47708. 1 cc To Mr.K.Elango, Advocate, SR.47533. W.A.No.1301 of 2008. MS(CO) RVL 30.09.2009 https://hcservices.ecourts.gov.in/hcservices/