Dr. Yatin Malhotra v. Union of India & Anr.

1. Allowed, subject to just exceptions and as per extant Rules.

2. The application is disposed of. W.P.(C) 5662/2021 and CM No.17655/2021 (for interim directions)

3. The petitioner, a candidate in the recruitment process for grant of Short Service Commission in the respondent no.2 Armed Forces Medical Service, pursuant to advertisement inviting applications therefor, was declared unfit in the medical examination conducted on 26th August, 2020, for the reasons of, (i) being overweight by 10 kgs; (ii) having Deviated Nasal Septum (Left) (ENT); and, (iii) having ‘V’ shaped deep palate (dental). 2021:DHC:1784-DB

4. The petitioner applied for Appeal Medical Board and the Appeal Medical Board found the petitioner to have reduced his weight, to within the permissible limits; however the petitioner was still declared unfit for the reason of non-functional occlusion on the left side of jaw. The petitioner applied for re-examination by Review Medical Board but which also found the petitioner unfit.

5. The petitioner does not dispute that he suffers from non-functional occlusion on the left side of jaw. The counsel for the petitioner explains that one tooth of the petitioner is missing since birth. It is however the contention of the counsel for the petitioner that the post for which the petitioner had applied was of a Civilian Doctor, as mentioned in the Declaration of Result of Short Service Commission Board 2020, at page 102 of the file, and the respondents, instead of prescribing any separate medical standards for the Civilian Doctors, are applying the same standards as applicable to officers recruited into the Armed Forces. It is argued that since the duties to be performed are entirely different, application of the same standards is arbitrary.

6. The petitioner also challenges clause 6(e) of the Medical Standards and Procedure of Medical Examination for Officer Entries into Army filed as Annexure P-2 to the petition. It is the contention of the counsel for the petitioner, that the deformity of non-functional occlusion on the left side of jaw is not such which affects the performance of any of the duties by the petitioner and thus prescribing the same as a disqualification, is not apposite. It is also the contention of the counsel for the petitioner, that though he was of the opinion that the jurisdiction for the subject lis was of the Armed Forces Tribunal (AFT) and prepared an O.A. to be filed before the AFT, but on advice of the Registry of AFT, did not file the same and instead has filed this petition. Reliance is placed on Mohammed Ansari Vs. Union of India (2017) 3 SCC 740, to contend that since the post for which the petitioner applied was of a Civilian Doctor, AFT would have no jurisdiction.

7. At least we are not aware of two categories of medical personnel in the Armed Forces i.e., Civilian Doctors and Doctors who are required to serve in all terrains as well as under hard conditions.

8. Though the counsel for the respondents appears on advance notice, she states that she has no instructions.

9. Such appearance on advance notice, without having any instructions, is as good as no appearance and the counsel for the respondents is requested to in future ensure that instructions are received before appearing on advance notice.

10. Issue notice.

11. Notice is accepted by the counsel for the respondents.

12. Counter affidavit, expressly answering (i) whether there are two categories of doctors as aforesaid, (ii) if the answer to (i) is in the affirmative, whether the Civilian Doctors are always posted in cities/towns and not on borders and at hard place postings, (iii) whether AFT has jurisdiction for the subject lis, (iv) what is the reason/rationale for making non-functional occlusion on the left side of jaw, a ground for rejection in recruitment, and, (v) what is the reason for application of same standards for doctors in the Armed Forces as for officers who are also required to do combat duties, in the Armed Forces, be filed on or before 30th July, 2021.

13. Rejoinder thereto, if any, be filed before the next date of hearing.

14. List on 8th September, 2021.

RAJIV SAHAI ENDLAW, J AMIT BANSAL, J JUNE 2, 2021 SU