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Rakesh Kumar Ghosh Vs. Union of India Through the Ministry of Defence, Deputy General Resettlement and Others - Court Judgment

LegalCrystal Citation
CourtArmed forces Tribunal AFT Regional Bench Kolkata
Decided On
Case NumberTransfer Application No. 31 of 2010
Judge
AppellantRakesh Kumar Ghosh
RespondentUnion of India Through the Ministry of Defence, Deputy General Resettlement and Others
Excerpt:
.....preliminary general medical examination as is done for all recruits. he was subjected to a second medical examination at military hospital, gaya on 8th may 2002. there it was detected that he had a deformity diagnosed as, ‘cubitusvalgus-bilateral, which, as per medical standards for enrolment, was a rejection criteria. he was referred to command hospital lucknow, where he was declared ‘unfit for ibid deformity that was labelled constitutional and beyond acceptable limit; thus discharged on medical grounds. aggrieved with such decision that robbed him of his livelihood, he represented before the military authorities pleading for review, but not agreed by the authorities. he then approached the honble calcutta high court by filing a writ petition (wp no. 19405 of 2003) that was.....
Judgment:

LT GEN K P D SAMANTA, MEMBER (ADMINISTRATIVE):

1. The petitioner, Rakesh Kumar Ghosh was enrolled at ASC (Army Service Corps Centre, Gaya on 19 April 2002 after going through the due process of preliminary general medical examination as is done for all recruits. He was subjected to a second medical examination at Military Hospital, Gaya on 8th May 2002. There it was detected that he had a deformity diagnosed as, ‘CubitusValgus-Bilateral, which, as per medical standards for enrolment, was a rejection criteria. He was referred to Command Hospital Lucknow, where he was declared ‘unfit for ibid deformity that was labelled constitutional and beyond acceptable limit; thus discharged on medical grounds. Aggrieved with such decision that robbed him of his livelihood, he represented before the military authorities pleading for review, but not agreed by the authorities. He then approached the Honble Calcutta High Court by filing a writ petition (WP No. 19405 of 2003) that was later transferred to this Tribunal and renumbered TA 31/ 2010. The petitioner had been relying on a point that he was, in an earlier attempt for recruitment in 2001, cleared for the same defect by the Command Hospital, Eastern Command, Kolkata, because the alleged deformity of ‘Cubitus Valgus was within acceptable limits.

2. The petitioner, in his writ application, has submitted that he was selected to join the Army after the due process of enrolment including stringent medical test on 3rd February 2002 and subsequently was asked to join the ASC Centre at Gaya by 2nd April 2002 that he complied to complete other formalities of enrolment. His basic military training commenced on 19 April 2002. He was subjected to a re-medical examination on 8th May 2002 at Military Hospital Gaya. The said deformity in both his elbows, diagnosed as ‘Cubitus Valgus Bilateral was detected here for which he was referred to Command Hospital Lucknow for opinion. The petitioner at the outset has questioned the procedure of a second medical test while he was initially cleared; a point that has been contested by the opponents since such a practice of holding a second medical examination was mandatory procedure as per rules.

3. Notwithstanding the above, the petitioner, in Para 6 of the petition, has reiterated that he, in an earlier attempt for recruitment on 2 August 2001 at Kancharapra recruiting office, was declared unfit for the same defect. He had, however, appealed before Command Hospital, Eastern Command, Alipore (Kolkata) against such rejection. The specialists at Command Hospital Kolkata had declared him ‘fit, since the extent of bent elbows due to CubitusValgus – Bilateral was within limits as per medical standards for recruitment. The petitioner further submits that despite being medically cleared he did not take the recruitment test at Kancharapara. Therefore, according to the petitioner, a deformity that was within limits in August 2001 could not become a cause of rejection after one year when examined at Lucknow. The petitioner feels that the authorities were whimsical and careless while deciding to medically discharge him from service. The issue that was raised by the petitioner with regards to his earlier medical fitness in August, 2001 (paragraph-6 of Writ Petition) were not contested by the respondents as would be evident from paragraph-2(C) of the A/O.

4. The petitioner has been out of the Army discharged on medical grounds since 2003. He appealed against such rejection to the higher authorities (Annexure -1). In the said appeal, he requested for a review medical examination as he was not satisfied with the cause of medical rejection and he always feel that the angle of his elbows on account of ‘cubitus valgus were within normal limits. However, such request for review medical examination was rejected by the respondents vide HQ Madhya Bharat Area, Jabalpur of letter dt. 26th Nov, 2002 (Annexure P-2 of the petition).

5. The applicant, through the writ petition has prayed for a review medical examination and subsequently to rejoin services subject to his medical fitness.

6. The respondents while agreeing with the factual aspects of the petition have continued to insist that the petitioner was medically unfit on account of ‘cubitus valgus bilateral which is a constitutional deformity and for which his recruitment could not be considered medically tenable.

7. Initially, the respondents did not annex the medical documents to substantiate their case that he was medically boarded out on account of above deformity of his elbows. On directions from the Tribunal, the respondents submitted the original Invalidment Medical Board Proceedings that was conducted at Command Hospital, Lucknow before he was boarded out on 1st March, 2003. We have perused the said documents that were submitted to us in a sealed cover.

8. The respondents reiterated that subsequent to the petitioner having joined ASC, Training Centre on 19th April, 2002 as a recruit, he was put through a re-medical examination on 8th May, 2002 as per mandatory requirement in accordance with rules in vogue. It was there that the medical authorities on at Military Hospital, Gaya discovered that he had a defect that was termed as a constitutional disability, ‘Cubitus Valgus( bilateral). It is on this account that the he was referred to Command Hospital, Lucknow for opinion of Senior Advisor (Surgical and Ortho). Opinion of the specialists at Command Hospital, Lucknow confirmed that the extent of disability on account of the said deformity was not acceptable and the petitioner had to be invalided out on 1st March, 2003.

9. The respondents could not produce the medical documents that had declared the petitioner fit for the same deformity/disability in February, 2001 on the occasion of an earlier recruitment attempt by him. Therefore, it is evident that the medical authorities at Lucknow while examining the petitioner on 23rd May, 2002 ( paragraph-8 of A/O) were not aware that the patient/petitioner was examined for the same defect by Command Hospital, Calcutta a year earlier in February, 2001 where he was declared fit. Such medical documents were not compared at any time.

10. We have heard the learned counsels for both the sides and have examined all relevant documents, affidavits and the Medical Board Proceedings of Command Hospital, Lucknow in detail. Our observations and issues that stand out as under:-

(a) The Manual for medical fitness of recruits, paragraph-20 thereof, clearly states that ‘Cubitus Valgus (divergence of elbows) with carrying angle more than 15o would be a cause for rejection. We examined the Medical Board Proceedings that was submitted to us on 18th January, 2001 on demand. In the said Medical Board Proceedings, the carrying angle as mentioned in medical opinion case-sheet indicates that it was 115o for right hand and 114o for left hand. In the same documents, we find that x-ray of the elbows have been attached along with report of the radiologists. The details mentioned in the radiologists report indicate that the divergence angle on account of ‘Cubitus Valgus were ‘within normal limits(WNL). In the said report of the radiologists, the carrying angle has been mentioned as 160o and 161o for the right and left elbows respectively. It is evident that the extent of divergence of elbows would be beyond visual assessment. Had he had a divergence in his carrying angle up to 160o then, in that case a very obvious deformity could be noticed to anybody. In such cases, Recruiting Medical Officer could not have ignored it.

11. We do not find any convincing reasons for the authorities not to locate the petitioners medical papers of February, 2001 in Command Hospital, Calcutta. Had such papers have been available to the medical authorities at Lucknow; their opinion could have been different.

12. The respondents inability to produce the medical documents from Military Hospital, Calcutta surprises us. It could lead us to take adverse presumption that production of these documents could perhaps weaken the case for the respondents.

13. After having considered all the above issues, we are of the considered opinion that there is a gross doubt with regards to the extent of deformity of elbows of the petitioner (‘Cubitus Valgus Bilateral). There are divergent opinions even amongst the specialists i.e., Surgeon and radiologists which to our mind has not been adequately mentioned. We also feel that non-availability of the details of the medical examination done at Command Hospital, Calcutta in February, 2001 casts a stigma on the findings of the Medical Board that was held at Lucknow in May, 2002. In view of such glaring contradictions and doubts, it would be in all fairness that the petitioner be subjected to Review Medical Examination. In view of the above, the petition is disposed of with partial relief to the petitioner with following directions:-

(i) The respondents shall conduct a ‘Special Review Medical Board for the applicant and ascertain his suitability for recruitment in the Army.

(ii) Such Medical Board shall be held at nearest Command Hospital from the place of residence of the applicant.

(iii) Such Review Medical Board shall be held within thirty days of receipt of this order.

(iv) In case, he is found medically fit, he shall be reinstated in service and report at a Training Centre as a recruit to further commence post enrolment training.

(v) Place of training, allotment of service and trade shall be at the discretion of the Chief of Army Staff.

14. The application is disposed of with ibid directions on contest without any costs to either side. Let the documents of Medical Board Proceedings in respect of the applicant be returned to the learned counsel for the respondents in a sealed cover for returning to the Army authorities. Let a plain copy of this order be handed over to the learned counsel for both the sides.


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