The determination of medical fitness for military recruitment should be upheld unless substantial evidence of error or mala fides is presented against the medical boards' findings.

JUDGMENT

Navin Chawla, J. (Oral)--This petition has been filed by the petitioner praying for a writ of mandamus directing the respondent no. 1 to constitute a Review Medical Board to examine the petitioner for his recruitment as a Sailor [AA], Sailor [SSR]-08/2020 Batch.

2. The respondent no. 2 invited applications online for recruitment as a Sailor [AA], Sailor [SSR]-08/2020 Batch. The petitioner applied against the same and on clearing written examination, underwent a medical examination at the Recruiting Medical Office at INS Chilka. The petitioner was declared medically unfit vide referral order dated 03.02.2021 for Naval Service due to `2nd Toe Deformity Both Legs'. It is the case of the petitioner that the petitioner was examined by the Appeal Medical Board on 23.02.2021, however, was orally declared unfit. The petitioner filed a representation dated 06.03.2021 against the same seeking the constitution of a Review Medical Board, however, received no reply.

3. The learned counsel for the petitioner places reliance on Regulation 482 of the Defence Services Regulations, Regulations for the Medical Services of the Armed Forces 1983, to contend that the respondent no. 1 was under a duty to constitute a Review Medical Board at the request of the petitioner.

4. On 26.04.2021, this petition was first listed before this Court. As the learned counsel for the petitioner expressed urgency for hearing the petition and as none appeared for the respondent on advance notice, notice was issued on the petition and the learned counsel for the petitioner was given liberty to serve a copy of the petition on the standing counsel for the respondent. The petition was directed to be listed on 27.04.2021.

5. On 27.04.2021, again none appeared for the respondents. This Court, therefore, passed the following order:-

"3. Given these circumstances, and the fact that the petitioner has already moved the concerned authority for convening the appeal medical board to review his medical fitness, the concerned authority is directed to have the petitioner examined by the appeal medical board and ascertain, as to whether the impugned medical report needs to be revised.

4. It is made clear that this will be without prejudice to the rights and contentions of the parties.

4.1. These directions are being issued as we are informed that the final list concerning the selected candidates will be published on 30.04.2021.

5. We may also note, in support of his plea, that the review can be carried out by respondent no. 1, Mr. Kauntae has referred to Regulation No. 482 of the Regulations for the Medical Services of the Armed Forces, 1983.

6. The appeal medical board will ensure that its decision is rendered before the publication of the final list."

6. The respondent has filed a counter affidavit to the petition explaining that the petitioner had been duly examined at INS Chilka and was found medically unfit for Naval Services due to `2nd Toe Deformity Both Legs' and was further granted referral to seek an Appeal Medical Examination to be held at INHS Kalyani on 24.02.2021. The petitioner was thereafter examined by the Appeal Medical Board held at INHS Kalyani, Vishakhapatnam on 23.02.2021 and was again declared unfit on the following reasons:-

"B/L 2nd toe clawing present with secondary nail changes due to friction with footwear. UNFIT for referred disability."

7. The learned counsel for the respondents submits that the above report of the Appeal Medical Board could not be pointed out to this Court when the order dated 27.04.2021 was passed by this Court. He further submits that in terms of the Navy Order (SPL) 01/20