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Mazrul Haque Vs. Union of India Service Through Ministry of Defence and Others - Court Judgment

LegalCrystal Citation
CourtArmed forces Tribunal AFT Regional Bench Kolkata
Decided On
Case NumberTransfer Application No. 35 of 2010
Judge
AppellantMazrul Haque
RespondentUnion of India Service Through Ministry of Defence and Others
Excerpt:
.....constitutional deformity. all medical documents and invalidment board proceedings with opinion of army medical authorities have been attached to the said a/o which have been examined by us. 8. the respondents, in their said affidavit have justified their action to discharge the petitioner under army rule 13(3) (iv), since, found medically unfit in a valid medical board (paragraph 4(f) of the a/o). the opposition denies the apprehension of any ulterior motive as envisaged by the petitioner in paragraph 6 and 7 of the writ application. they, thus consider their action fully legal without any prejudice and in accordance with rules. 9. the applicant, in reply to the above a/o, submitted an affidavit-in-reply (in short ‘a/r) on 15-09-2010. in the said a/r the petitioner, besides.....
Judgment:

LT Gen K P D Samanta, Member (Administrative)

1. The Petitioner, Majrul Haque, was enrolled in the ‘MAHAR REGIMENT of the Indian Army on 14th January, 2002, but was discharged being medically invalidated on 26th May, 2002 from the Mahar Regimental Training Centre at Saugor, where he was pursuing his recruit training. Being aggrieved by the ibid decision of the authorities, he filed a Writ Petition (WP 2179(W)/2004) with Calcutta High Court on 10th February, 2004. Upon constitution of AFT Bench, it was transferred to the AFT on 29th March, 2010.

2. The petitioner submits in his application that he had applied for enrolment as part of Unit Headquarters (UHQ) quota in Mahar Regimental Centre on 1.11.2010 in the trade of Soldier General Duty (GD). After going through due process of recruitment including medical test, he was provisionally selected on 8.11.20001 (Paragraph- 3 and Annexure P-1 of the Petition). He also underwent a medical test at the Centre MI Room as evident from fitness certificate issued by the medical authorities (Annexure P-2 of the Petition).

3. Subsequent to aforesaid temporary/provisional selection, the petitioner was asked in writing by the Centre HQ to report at ‘Mahar Regiment Centre, Saugor on any day between 20-12-2001 to 20-2-2002 with all documents as specified ( Paragraph 4and5 and Annexure P-3 of Petition). He reported at the said training Centre in Saugor on 14-1-2002(Date of enrolment) and joined recruit training schedule.

4. The petitioner was surprised to be discharged on 26-5-2002 declared as ‘Invalided out that he later understood was on medical ground. Petitioner considers such a discharge as arbitrary and illegal. He also claims in paragraph -10 of the Petition, that there was no reason for him to be medically unfit leading to discharge on medical grounds, while he was fit at the time of enrolment. He concludes his ibid petition with prayers to cancel the said discharge order of 26th May, 2002 and reinstate him back in service.

5. The respondents contested the claims made by the petitioner as submitted in their Affidavit-in-Opposition (hereinafter referred to as the ‘A/O) dated 4th August, 2004. At the outset, the respondents, in paragraph- 4 of the ibid A/O submit that the petitioners selection on 8-11-2001 was provisional and the medical examination then done was of a routine nature conducted by the Regimental Medical Officer (RMO) of the Centre.

6. The actual enrolment was on 14-1-2002, when he was asked to report at the Centre in Saugor that the petitioner did. The opposition further emphasises in ibid paragraphs of the A/O, that the petitioner, merely after 4 days of training, was admitted in Military Hospital for his 2nd medical test as per a policy enunciated in a policy letter of 6-7-1999 (Army HQ letter No. 7663/DGMS-5A dated 06-07-1999 at Annexure R-1 of the A/O). In the instant case, the petitioner was being enrolled under UHQ Quota and such recruitment was being carried out at the Training Centre and not in a recruiting office. Therefore, second medical test in a military hospital was essential as per paragraph 1(a) of the said Policy Letter.

7. The principal disability detected during training was ‘Bilateral Cubitus Valgus (Hands are divergent from body due to deformity in elbows). Consequently, his second medical test was held at military hospital, Saugor on 13-4-2002 in which he was declared medically invalided out of service for the above defect that was considered a constitutional deformity. All medical documents and invalidment board proceedings with opinion of Army Medical Authorities have been attached to the said A/O which have been examined by us.

8. The respondents, in their said affidavit have justified their action to discharge the petitioner under Army Rule 13(3) (iv), since, found medically unfit in a valid Medical Board (Paragraph 4(f) of the A/O). The opposition denies the apprehension of any ulterior motive as envisaged by the petitioner in paragraph 6 and 7 of the writ application. They, thus consider their action fully legal without any prejudice and in accordance with rules.

9. The applicant, in reply to the above A/O, submitted an Affidavit-in-Reply (in short ‘A/R) on 15-09-2010. In the said A/R the Petitioner, besides reiterating the points mentioned in the original writ application, made submission counter to the A/O that he was fit when the RMO examined, but was later found unfit. He, thus, submits that he should have been retained in service and treated till cured of the ibid medical defect. In case of the elbow deformity as cited to be the reason for invalidation, petitioner produced private medical opinions that suggested correction of deformity by surgery. Without denying that there was this defect in elbow (Bilateral Cubicles Valgus), he maintained that it was correctable in modern medical field and Army should have retained him instead of mechanically boarding him out. The Ld Counsel for the Applicant also prayed during his submission on 22 December 2010 that the authorities could have considered the Petitioner for some lower trade in the Army where the medical fitness on account of the said deformity was not an issue.

10. After hearing both sides, we in our order dt. 08-12-2010 asked the respondents to file the documents that laid down medical standards primarily to ascertain the degree of deformity that in this case was tolerable to the Army. Such documents were submitted on 22-12-2010 (Army HQ DGMS Policy Letter No. 76054/Policy/DGMS-5A Dt. 23rd Jan, 2008). As per paragraph-28 at page -21 of the ibid document, in case of Cubitus Valgus-carrying angle of more than 15 degrees of elbows would be a cause of rejection, being considered as a gross physical deformity. In case of the petitioner, as documented in his Medical Board Proceedings (Annexure- II of A/O), his carrying angle/divergence of right elbow was 20 degrees and left side was 16 degrees. There was thus, no room for doubt.

DECISION

11. We have examined the Writ application and issues raised therein. The petitioner, after merely serving for four months since his enrolment on 14th Jan, 2002, was discharged from military service on medical grounds on 26th May, 2002.

12. During training at ‘Mahar Regiment Centre, Sagour, he was detected to have a gross physical deformity of his elbows. He was admitted in Military Hospital, Sagour for second medical examination that was permissible and required as per Policy in Army HQ Letter No. 7663/Policy/DGMS-5A dt. 06 July, 1999. It was detected that his carrying angles of elbows were deformed as termed ‘Bilateral Cubitus Valgus. The Medical Board documented the extent of deformity at ‘20 degrees right side and 16 degrees left side( Annexure-II of A/O). It was a cause of invalidment and rejection of his recruitment. Recruitment medical standards in such deformities can tolerate a divergent carrying angle of elbows up to 15 degrees as per medical standard of Army HQ Policy letter.

13. The petitioner was recruited under Unit Headquarters (UHQ) Quota at Mahar Regiment Centre and the Regimental Medical Officer could have missed this defect of deformity in visual examination. It is for this reason the Army Headquarters has laid down a Policy in their DGMS letter of 06-07-1999 that second medical test of candidates selected in UHQ Quota would be held again in a Military Hospital.

14. Considering the circumstances of initial selection and subsequent discharge on medical ground ( Bilateral Cubitus Vulgas – 20 degrees right side and 16 degrees left side), we find that the discharge was in order and in accordance with rules. We also are of the opinion that when such a deformity would be cause of rejection for initial recruitment, there would be no necessity nor any compulsions for the authorities to provide medical treatment to such a candidate with corrective surgery by Army, notwithstanding whether or not such a surgery was medically feasible or not.

15. We also noted that a deformity like Bilateral Cubitus Vulgas, where carrying angle of both his elbows/ hands were divergent outward more than 15 degrees, would impede his functions as a soldier no matter in which trade. It is for this reason that such a deformity has been mentioned in the Armys medical standards for recruitment as a cause of rejection.

16. In the facts and circumstances of the case and after considering affidavits and submissions of both sides, the aforesaid Transfer Application stands dismissed on contest without cost.

I agree.


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