Ratnesh Patel v. The Union of India and Ors.

1. Vide order dated 03.03.2020, this Court observed as under:- “3. The Petitioner has preferred the present writ petition to assail the order dated 23.12.2019 issued by the Respondents conveying the decision of the Competent Authority not to grant a Review Medical Board (RMB) to the Petitioner as per the existing policy. The Petitioner also seeks a mandamus to the Respondents to grant the RMB for entry into the 143rd NDA Course at Khadakwasala, Pune. He seeks a direction to the Respondents to allow the Petitioner to join the said 143 NDA Course at Khadakwasala, Pune.

4. The Petitioner who is a young man of nineteen years of age, applied for the National Defence Academy and Naval Academy Examination (1/2019) conducted by 2022:DHC:3498-DB UPSC, Delhi. He appeared in the examination on 21.04.2019. He qualified in the written examination and was called for Service Selection Board interview on 18.08.2019. The Petitioner was recommended from SSB Bhopal on 23.08.2019 after he qualified various tasks and stages of the SSB interview conducted over a period of five days. On 21.08.2019, he was sent for medical examination before the Special Medical Board at Military Hospital Bhopal. Petitioner was rejected/declared unfit upon his medical examination on two issues and was granted right of appeal against the finding of the Special Medical Boar^ Accordingly, he appeared before the Appeal Medical Board at Base Hospital Camp, Delhi, on 10.10.2019, but was found to be medically unfit on account of Renal Calculus (L[1]), meaning that he had a stone in his left kidney. The communication dated 19.10.2019 was issued to the Petitioner after his examination by the Appeal Medical Board. The said communication inter alia stated that when a candidate is declared unfit by Appeal Medical Board, there is a provision to hold Review Medical Board (RMB) in case the candidate desires to challenge the findings of the Appeal Medical Board. It was also stipulated that the candidate may do so within a period of 1 day from the date of AMB by submitting an application for RMB addressed to Integrated Headquarters of MoD (Army), Adjutant General's Branch, Dte General Medical Service (Army)/DGMS- 5(A) 'L' Block, New Delhi with a copy to the president of the AMB.

5. The Petitioner, accordingly, applied for holding of the Review Medical Board which was declined by the impugned communication dated 23.12.2019. In this background, the Petitioner has preferred the present writ petition which appears to be filed for the first time on 27.02.2020.

6. The grievance of the Petitioner primarily is that the Respondents have not permitted the conduct of the Review Medical Board despite the Petitioner having a right for convening of the RMB. Further, the submission of learned counsel for the Petitioner is that the medical condition of the Petitioner, namely Renal Calculus (Lt.), is not a medical condition which justifies the Petitioner being declared medically unfit since the Petitioner is not having any stones m either of his kidneys, and by surgical intervention conducted on 26.09.2019, the stone in the left kidney of the Petitioner had been removed. Petitioner has placed on record a medical certificate issued to him by the Golcha Hospital and Urological Research Centre, Jabalpur on 17.02.2020 as well as Medical Certificate by Department of Radiodiagnosis Super Speciality Hospital, NSCB Medical College & Hospital, Jabalpur on 13.02.2020.

7. Learned counsel for the Respondents puts in appearance on advance notice and he is assisted by Lt. Col. Kapil Pandya. The first submission of learned counsel for the Respondents is that the impugned communication was issued on 23.12.2019 but the petition has been preferred only at the end of February, 2020. In the meantime, the concerned course has already commenced on 02.01.2020. The petition is therefore barred by delay and laches. Learned counsel for the Respondents further submits that a RMB cannot be claimed as a matter of right and it is convened only in rare and exceptional eases. Learned counsel for the Respondents further submits that RMB is convened at the discretion of the Respondents and cannot be claimed as a matter of right. He has placed before us the original record of Petitioner's case, dealing with his request to convene RMB for consideration of his case. As per the record shown, the RMB is not recommended.

8. Lt. Colonel Kapil Pandya, who is also a doctor states that as a matter of policy, candidates with Renal Calculus are not recruited to the Armed Forces since the chances of recurrence of the diseased are very high. He submits that looking at the arduous nature of duties and responsibilities that the recruits are expected to perform, as a matter of policy, the Armed Forces do not take candidates who have suffered from Renal Calculus, even if they have been cured by surgical intervention.

9. Learned counsel for the Petitioner has himself placed before us a decision of the Division Bench of this Court in Cadet Vivek Boora Minor Represented By Raghbir Singh Boora v. Union of India in W.P.(C) 1280/2015 decided on 21.05.2015. In the said case as well, the candidate who was suffering from Renal Calculus with spina-bifida, was declared medically unfit. This Court dismissed the writ petition. While doing so, the Court referred to an Article published in the Indian Journal of Endocrinology and Metabolism, 2012 March-April which contained an article by an expert on the subject, based on empirical data, on the topic, Protocol-based metabolic evaluation in high-risk patients with renal stones in North India". The Court referred to the said article which reveals that the Renal Calculus disease has a lifetime recurrence rate of 80 percent. In that case, the Court found that the candidate was also suffering spina bifida and in such type of cases, the chances of recurrence are even higher. Consequently, the Division Bench dismissed the writ petition. In any event, even if the candidate is not suffering from spina bifida, the chances of recurrence is 80 percent and therefore the policy of practice of the Respondents in rejecting candidates with Renal Calculus cannot be called in question.

10. We are therefore of the view that the Petitioner really has no justifiable grievance with regard to the rejection of his candidature.

11. Learned counsel for the Petitioner has lastly drawn our attention to para 31 of the writ petition wherein the Petitioner has cited the ease of another candidate namely, Mr. Kate Abhishek Shekhar, Roll No. 1314616 who was similarly declared medically unfit at Military Hospital, Allahabad in the same batch as that of the Petitioner, for the same medical condition namely. Renal Calculus. He underwent an operation for kidney stone and thereafter he was declared medically fit by command Hospital Pune and he joined the National Defense Academy on 143rd Post with AIR 61. Limited to the aforesaid aspect, we issue notice while making it clear that even if there has been an infraction on the part of the Respondents in not adhering to their policy, the same may not vest the Petitioner with right to claim a similar infraction in his case as well. The Respondents are directed to file their reply limited to the aforesaid aspect within two weeks.

2. Pursuant to said order, an affidavit is stated to have been filed by the respondents, however, the same is not on record. Learned counsel for the respondents has produced the same, wherein it is stated as under:-