MUSKAAN SINGH THROUGH PAROKAR vs UNION OF INDIA AND ORS
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: February 15, 2024
+ W.P.(C) 15861/2022
(70) MUSKAAN SINGH THROUGH PAROKAR ….. Petitioner
Through: Mr. Puru Mudgil, Adv. for Mr. Ajit Makkar, Advs.
versus
UNION OF INDIA AND ORS ….. Respondents
Through: Mr. Tanveer Ahmed Ansari, SPC with Lt. Col Mahua Upadhyay, Lt. Col. B. S. Poonia, O/o DGMS (Army) and Major Livea A Perera and Major Partho
Mr. Hilal Haider, GP
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE SAURABH BANERJEE
SAURABH BANERJEE, J. (ORAL)
1. As per facts, the petitioner qualified the OMR based online exam for the Military BSc (Nursing) Course-20191 and after her interview and initial Medical Board, she was declared medically fit on 25.05.2019. Resultantly, her name was included in the provisionally selected candidates for the said course.
2. During the Annual Medical Board2 at Command Hospital Air Force, Bangalore on 17.10.2019, an ultrasound revealed that the petitioner had a mild malrotated right kidney. However, she continued pursuing the said course as the condition did not obstruct the same.
3. Later, she had to be hospitalised in CHAF, Bangalore for two days due to fever, dysuria and vomiting on 10.02.2022. Where she received treatment and gradually recovered as well. However, her medical records indicated the detection of the mild malrotated right kidney presenting features suggestive of acute pyelonephritis. In such a situation, the ADGMNS, i.e. respondent no.3 vide its letter dated 03.06.2022 terminated the training of the petitioner on medical grounds as such, the DGMNS, i.e. respondent no .4 vide letter dated 24.06.2022 informed the father of the petitioner about her termination from the said course and gave the option to continue her training as an civilian candidate at an increased cost.
4. Aggrieved, the petitioner made a representation to the respondent nos.2 to 4 on 08.08.2022 impugning the letter dated 03.06.2022 on the ground that despite diagnosing the mild malrotated right kidney as also apprising them that though the petitioner was declared fit, later on her training was brought to a halt.
5. Under the above circumstances, the petitioner vide the present petition under Article 226 of the Constitution of India seeks to quash the letters dated 03.06.2022 and 24.06.2022, as also to direct the respondents to allow her to continue as a stipendiary candidate and bring on record all relevant medical documents pertaining to her case.
6. Learned counsel for the petitioner submits that the termination of the training of the petitioner by respondents is arbitrary, unreasonable and is violative of Article 14 of the Constitution of India and further being ultra vires violative of Article 20 of the Constitution of India as well. He submits that despite efforts of making representation on 08.08.2022, the petitioners plea to the relevant authorities to re-consider their stance was met with unsatisfactory responses that too inspite of the medical issue in question having been previously acknowledged at the stage of AMB at CHAF Bangalore.
7. Relying upon the judgment in CW. No. 3072/1999 titled as Surinder Sharma vs. Union of India and Ors., wherein under similar circumstances, the petitioner was terminated as he was short by 1cm in height, this Court held it to be against the principles of natural justice and granted him reinstatement, prays for similar relief.
8. Learned SPC for the respondents on the other hand submits that the training of the petitioner as a stipendiary candidate was terminated and she was permitted to continue training as civilian student after payment of cost of training for the remaining duration of study as per letter of Govt. of India, Ministry of Defence dated 09.07.2019 in view of the clinical condition and further risks of developing recurrent UTI wherein the Classified Specialist Surgery & Urologist, Command Hospital (Air Force) Bangalore had recommended that the petitioner was unfit for commissioning into Military Nursing Service as per Para 40(p) of Manual on Medical Examination and Medial Standard promulgated vide office order dated 03 Nov 2021, he further submits that it was in light of the same that.
9. This Court has heard the learned counsels for the petitioner and the respondents and perused the documents on record including the judgments relied on by the counsel(s).
10. Facts reveal that undisputedly the petitioner is indeed suffering from a specialised decease involving further risks of developing recurrent UTI. It is also not in dispute that upon detection of the mild malrotated right kidney during her medical examination held at CHAF, Bangalore she was referred to a Senior Advisor Surgery and Neurology for further evaluation. It is further not in dispute that the Classified Specialist Surgery & Urologist, Command Hospital (Air Force) Bangalore had specifically rendered its opinion and given a definitive finding qua the petitioner also declaring her Unfit. Lastly, the petitioner was also declared Unfit for commissioning into Military Nursing Service of Manual on Medical Examination and Medial Standard promulgated vide O/o DGAFMS/DG-3A 41187/2(V)/DGAFMS/DG-3A dated 03.11.2021.
11. Furthermore, learned SPC for the respondents alongwith the representative of the respondents present in person has handed over the appendix to O/o DGMS(Army) letter 76054/Policy/DGMS-5A dated 16.07.2019 as per which any candidate, like the petitioner, is Unfit if found that the Congenital structural abnormalities of kidneys is due to malrotation. The relevant extract thereof is as under:-
UNFIT
(i) Congenital structural abnormalities of kidneys:
a. Unilateral renal agenesis,
b. Unilateral or bilateral hypoplastic/contracted kidney of size less than 08cm,
c. Malrotation,
d. Horseshoe kidney,
e. Ptosed Kidney,
f. Crossed fused/ectopic kidney.
12. At the time of hearing today, learned SPC for the respondents also handed over the Policy No. 76054/Policy/DGMS-5(A) dated 22.12.2000 entitled Medical Board for Candidates seeking Commission in the Army/Navy wherein it has been specified that a candidate can only be selected by the Special Medical Board set-up under Government authority to ensure uniformity in the standard of medical examination of selected candidates for granting of commission in the three services only if there is no decease of the kidneys.
13. In terms thereof, admittedly, as the petitioner is suffering from mild malrotated right kidney, it is an unwritten given that she can neither be considered nor continue with the BSc (Nursing) Course-2019 and thus, she was rightly terminated by the respondents.
14. In any event, the Classified Specialist Surgery & Urologist, Command Hospital (Air Force) Bangalore being an expert medical body, it has the discretion to formulate and set the rules, select the candidates as also reject the candidate(s), if any. Moreover, when the said medical expert body has already given a definitive finding qua the petitioner declaring her Unfit, this Court can neither sit over the decision taken by it nor deliberate upon the correctness of the said decision as it is beyond the scope of jurisdiction for this Court to do so under Article 226 of The Constitution of India. This Court is only, under Article 226 of The Constitution of India, required to look into the correctness of the procedure followed, the manner adopted by the authority and if the enshrined principles of natural justice were duly followed by them. Needless to say, it is also a settled proposition of law that the scope of judicial review in matters involving the expert medical opinion, as in the present case in a petition under Article 226 of The Constitution of India, is extremely limited particularly when as this Court is required to tread with care and circumspection.
15. In view of the factual position involved herein, this Court finds that Surinder Sharma (supra) has no application and is of no relevance, moreso, whence the facts involved therein a completely different from those involved in the present petition.
16. Therefore, this Court also finds no fault in the decision of the respondents in terminating the petitioner as stipendiary candidate from the Military BSc (Nursing) Course-2019, especially, as it is categorically stipulated in Clause 4 of Section 1 (General Conditions and Principles of Medical Examinations), relevant extract whereof is reproduced hereinunder:-
4. It must be borne in mind by all Medical Officers and specialists that a candidate once selected as medically fit, if found unfit at a later stage due to a disability that could have been discovered during initial-medical examination (although many diseases/disabilities may not be detected due to limited investigations) causes considerable embarrassment to authorities and avoidable financial burden to State. In case of any doubt about any disease/disability/injury/genetic disorder etc noticed during enrolment/commissioning, the benefit of doubt will be given to the State.
17. In view of the factual position involved as also the settled position of law, the petitioner is not entitled to any of the reliefs claimed in the present petition.
18. Accordingly, the present petition alongwith the pending applications therein, if any, is dismissed.
SAURABH BANERJEE, J.
V. KAMESWAR RAO, J.
FEBRUARY 15, 2024/rr
1 Hereinafter referred to as said course
2 Hereinafter referred to as AMB
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